Is the California Redistricting Initiative in Substantial Compliance With California law?

The Los Angeles Times article cited in my post below notes the following problems with the redistricting initiative: "according to backers of the initiative, it gives legislative leaders one day more than the Lockyer-approved version to select the retired judges who would draw the districts. In addition, the preamble of the initiative is condensed from five paragraphs to four in versions displayed by signature-gatherers on the street."

The question whether the initiative should be disqualified from appearing on the ballot appears to turn on whether the petitions were in "substantial compliance" with California law. Although backers of the initiative claim that it is, I am not so sure.

Here is a useful statement of the substantial compliance doctrine, from Ruiz v. Sylva, 102 Cal.App.4th 199 (2002):

The failure to provide information or the communication of misinformation--threaten the proper operation and the integrity of the election process. (San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, 642, 89 al.Rptr.2d 388.) No court has applied the doctrine of substantial compliance to save a petition that provides confusing or misleading information. (Clark v. Jordan, supra, 7 Cal.2d 248, 60 P.2d 457 [finding no substantial compliance where short title does not reveal initiative measure would affect taxes]; Mervyn's v. Reyes (1998) 69 Cal.App.4th 93, 104, 81 Cal.Rptr.2d 148 [omitting 17 pages of general plan section did not constitute substantial compliance]; Hebard v. Bybee (1998) 65 Cal.App.4th 1331, 77 Cal.Rptr.2d 352 [no substantial compliance where title of ordinance in referendum petition was inaccurate]; Ibarra v. City of Carson (1989) 214 Cal.App.3d 90, 99, 262 Cal.Rptr. 485["[w]here the purpose of the statutory requirement is to give information to the public to assist the voters in deciding whether to sign or oppose the petition, the substantial compliance argument is often rejected and strict compliance held essential"]; Creighton v. Reviczky, supra, 171 Cal.App.3d 1225, 1231, 1338, 217 Cal.Rptr. 834 [finding no substantial compliance where proponents increased confusion by excluding test of protested legislation].)

In contrast, the doctrine of substantial compliance has been applied where only the emphasis of the information presented is at issue. For example, in California Teachers Assn. v. Collins (1934) 1 Cal.2d 202, 34 P.2d 134, the registrar of voters refused to accept a petition because, in part, the short title was printed in 12 point instead of 18 point type, when section 1197b of the Political Code required that "across the top of each page after the first page of every initiative ... petition or section thereof ... there shall be printed in eighteen-point gothic type a short title...." (Id. at pp. 203-304, 34 P.2d 134.) The Supreme Court found "[i]n actual size there is a difference of but six-seventy-seconds of an inch. Only one with very poor eyesight would be unable to read a line printed in twelve-point type as readily as one printed in eighteen-point type." (Id. at p. 204, 34 P.2d 134.) "[W]e are of the view there has been a sufficiently substantial compliance with the statute to require him to accept and file the petition." (Ibid.; see also Othmer v. City Council of Long Beach (1929) 207 Cal. 263, 270, 277 P. 857 [finding substantial compliance where "there was nothing in the duplicate copies of the petition to mislead the electors, and there can be no doubt that each signer fully understood that he was signing a petition for the recall of the four councilmen"]; Chase v. Brooks (1986) 187 Cal.App.3d 657, 664, 232 Cal.Rptr. 65 [finding caption to be in substantial compliance with requirements].)
One reason to distinguish between information and emphasis when applying the substantial compliance doctrine is that only the latter is necessarily content neutral. Where the information is mischaracterized the electorate is misled, and the voter is unable to intelligently exercise his or her right to vote, the "sword of democracy." (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 643, 89 Cal.Rptr.2d 388.) On the other hand, where the only defect is that the typeface is not in strict compliance with the Elections Code, the voter may still be able to intelligently exercise **363 his or her right to vote. (See California Teachers Assn. v. Collins, supra, 1 Cal.2d 202, 34 P.2d 134.) "The law is clear that election officials have a ministerial duty to reject initiative petitions which suffer from a substantial, as opposed to a technical, statutory defect which directly affects the quality of information provided to the voters." (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 644, 89 Cal.Rptr.2d 388.)

I am forwarding these brief talking points from Dan Kolkey-here is the full version
-----Original Message-----
From: "roman buhler" <roman-buhler@msn.com>
Date: Wed, 6 Jul 2005 02:05:13 
To:<buhler.roman@earthlink.net>

-----Original Message-----
 
From: Kolkey, Daniel M. [mailto:DKolkey@gibsondunn.com]
 
Sent: Wednesday, July 06, 2005 12:51 AM
 
To: roman-buhler@msn.com
 
Subject: FW: Talking Points on Legal Issues
 
 
 
BRIEF TALKING POINTS: WHY THE FAIR DISTRICTS NOW INITIATIVE SHOULD BE ON THE NOVEMBER BALLOT
 
 
 
I.  The initiative satisfies the requirements to be placed on the ballot.
 
Under the California Constitution, article II, section 8, subdivision (c), where the Secretary of State has been presented with an initiative petition that (i) is in the proper format, (ii) has an impartial and accurate title and summary prepared by the Attorney General, and (iii) is certified as having been signed by the requisite number of voters, the Secretary of State has a ministerial duty to submit the text of that petition to the voters.
 
 
 
      A.  The redistricting initiative here (the Voter Empowerment
 
Act) satisfies these requirements, has been certified as having been signed by the requisite number of voters, and has an impartial and accurate title and summary.
 
 
 
      B.  Article II, section 8, subdivisions (b) and (c) of the California Constitution provides in relevant part:
 
      (b)  An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.
 
      (c)  The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election.
 
The Governor may call a special statewide election for the measure.
 
      Accordingly, under the Constitution, once an initiative petition, which sets forth the text of a proposed constitutional amendment and which has been certified to have been signed by the requisite number of electors, has been presented to the Secretary of State, the Secretary of State must submit it to the voters.
 
 
 
II.  The differences between the version of the initiative circulated to the voters and the draft submitted to the Attorney General are non-substantive and technical.
 
The version of the redistricting initiative circulated and signed by the voters has some stylistic and technical differences from the draft submitted to the Attorney General's Office for title and summary, but none implicates the substance of the title and summary (which is the only purpose for submitting the draft to the Attorney General):
 
            a.  The circulated version uses the word nominated
 
instead of selected and selected rather than appointed.
 
            b.  The circulated version uses provided for instead of as specified.
 
            c.  The circulated version has stylistically altered three sentences from the draft submitted to the Attorney General's Office but the point and substance of each sentence is the same.
 
            d.  The circulated version gives the legislative leaders of both parties an extra day to nominate special masters and an extra day to object (peremptorily challenge) a nominated special master.  But in both versions, the special masters must be appointed within the same period of time. 
 
            e.  The findings and declarations of the initiative (which are not part of the text of the constitutional amendment itself) are stylistically different in each version but make the same points:
 
The Legislature should be responsive to the voters; the Legislature's self-interest and gerrymandering has led to uncompetitive districts, leading to a disconnect between the interests of the People of the State and their representatives; the gerrymandered districts in 2001 serve incumbents and are repugnant to the People; and the representative system should be open to public scrutiny and embody the principle that government derives its power from the consent of the governed.  
 
 
 
III.  The fact that an uncirculated draft of the initiative petition has stylistic and technical differences from that signed by the voters cannot invalidate the measure signed by the voters and certified as having sufficient signatures.  No elections code provision or case suggests that technical, non-substantive differences between the text of a circulated version of an initiative measure and the draft submitted to the Attorney General's Office invalidates the initiative measure as long as the title and summary are not misleading (and they are not misleading here).
 
 
 
      A.  Indeed, not one of the differences between the draft submitted to the Attorney General and the text of the circulating initiative petition implicates any of the points made in the title and summary.  The title and summary states: REAPPORTIONMENT. INITIATIVE CONSTITUTIONAL AMENDMENT.
 
Amends the state Constitution's process for redistricting California's Senate, Assembly, Congressional and Board of Equalization districts.
 
Requires three-member panel of retired judges, selected by legislative leaders, to adopt new redistricting plan if measure passes and again after each national census.  Panel must consider legislative, public proposals/comments and hold public hearings. Redistricting plan becomes effective immediately when adopted by judges' panel and filed with Secretary of State.  If voters subsequently reject redistricting plan, process repeats.  Specifies time for judicial review of adopted redistricting plan; if plan fails to conform to requirements, court may order new plan.  Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local governments:  This measure would have the following major fiscal impact:  One-time state redistricting costs, probably totaling a few million dollars.
 
Comparable savings for each redistricting effort after 2010 (once every ten years).
 
 
 
      B.  The only case to address this precise issue upheld the validity of the initiative petition.  In MHC Financing Limited Partnership Two v.
 
City of Santee (2005) 125 Cal.App.4th 1372, the Court of Appeal upheld an initiative petition that used the title and summary prepared for an earlier version.  
 
            1.  There, the city attorney prepared a ballot title and summary for a proposed initiative petition (the March 18 initiative), but a subsequent modified version submitted to the city clerk (the April
 
2
 
initiative) was circulated under the ballot title and summary prepared for the earlier version.  After the petition qualified, the city council chose to adopt the proposed initiative as an ordinance, rather than submit it to the voters, as authorized by Elections Code section 9215.
 
But owing to an administrative mistake, the text of the earlier March 18 initiative was adopted by the Council, only to be replaced by the circulated April 2 version over three years later after the error came to light.  
 
            2.  The Court of Appeal found (1) that enactment of the uncirculated March 18 version could be cured with the enactment of the circulated version and (2) that the use of the title and summary prepared for the uncirculated version constituted substantial compliance with the code.  Among other things, the Court of Appeal expressly rejected the claim that the enactment of the ordinance that was circulated  on the initiative petition (the April 2 initiative) was invalid on the ground that the ballot title and summary was prepared for the earlier March 18 version. (Id. at pp.
 
1388-1390.)
 
 
 
IV.  Technical deficiencies in initiative petitions will not invalidate them if they are in substantial compliance with the constitutional and statutory provisions.
 
Because the right of initiative is one of the most precious rights of our democratic process, the California Supreme Court has ruled that '[i]f doubts can reasonably be resolved in favor of the use of this reserved power, the courts will preserve it.' [Citations.] (Associated Homebuilders Etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591.)
 
 
 
      A.  The paramount factor in determining whether a petition is valid despite an alleged defect 'is whether the purpose of the technical requirement is frustrated by the defective form of the petition.'
 
(Assembly v. Deukmejian (1982) 30 Cal.3d 638, 652.)  Here, despite the stylistic and technical differences between the circulated text and the draft submitted to the Attorney General's Office for title and summary, the purpose of submission to the Attorney General's Office has not been frustrated since the title and summary is impartial and not misleading.
 
The immaterial differences between the draft submitted to the Attorney General's Office and the text of the circulating petition do not even implicate the points included in the title and summary.
 
 
 
      B.  After all, [t]he main purpose of these [election code] requirements is to avoid misleading the public with inaccurate information.
 
(Amador Valley Joint Union High School District v. State Board of Equalization (1978) 22 Cal.3d 208, 243.)  The public was not misled here.
 
 
 
      C.  Courts have even refused to invalidate ballot measures on the grounds of technical differences between the initiative petition circulated for signature and the version included as part of the state ballot pamphlet.
 
(See Guillory v. Superior Court (2002) 100 Cal.App.4th 750, 772-775; People v. Scott (2002) 98 Cal.App.4th 514.)  In that circumstance, the courts have held 'invalidation of a ballot measure is only required if the materials, in light of other circumstances of the election, were so inaccurate or misleading as to prevent the voters from making informed choices. . . . .
 
(Guillory v. Superior Court, supra, 100 Cal.App.4th at p. 772; People v.
 
Scott, supra, 98 Cal.App.4th 514.)
 
 
 
      
 
 
 
 
 
Sent via BlackBerry from EarthLink Wireless.
  

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org