Breaking News: California Supreme Court, in Split
Decision, Puts Prop. 77 Back on Ballot
Here is the Court's order, from the docket:
Petition for review GRANTED. The judgment of the Superior Court of
Sacramento County filed on July 22, 2005, in Lockyer v. McPherson et
al. (05CS00998), directing the Secretary of State not to place any
version of Proposition 77 on the November 8, 2005, special election
ballot or in the voter election materials, is stayed pending this
court's determination of this matter or further order of this court. In
the absence of a showing that the discrepancies between (1) the version
of the initiative measure that was submitted to the Attorney General
and (2) the version of the initiative measure that was circulated for
signature (and that was signed by the requisite number of qualified
voters and has been certified for placement on the ballot) were likely
to have misled the persons who signed the initiative petition, we
conclude that it would not be appropriate to deny the electorate the
opportunity to vote on Proposition 77 at the special election to be
held on November 8, 2005, on the basis of such discrepancies. (Cf.
Assembly v. Deukmejian (1982) 30 Cal.3d 638, 652-654.) Accordingly, the
Secretary of State and other public officials are directed to proceed
with all the required steps to place in the election pamphlet and on
the ballot of the special election to be held on November 8, 2005, the
version of Proposition 77 that was signed by the requisite number of
qualified voters.
Any public official or other person who has not had an opportunity to
revise statements or ballot arguments that have already been submitted
to the Secretary of State in order to reflect the version of
Proposition 77 that will appear in the election pamphlet and on the
ballot shall be permitted to submit a revised statement or ballot
argument to the Secretary of State no later than 3 p.m. on Monday,
August 15, 2005. After the election, we shall determine ether to retain
jurisdiction in this matter and resolve the issues raised in the
petition. Kennard, J., and Moreno, J., voted to deny review. Werdegar,
J., unavailable and did not participate. Votes: George, C.J., Baxter,
Chin, and Aldrich*
* Hon. Richard D. Aldrich, Associate Justice of the Court of
Appeal, Second Appellate District, Division Three, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
This is a surprise, and a very curious order. On the one hand, the
Court seems to resolve the merits, by imposing a "likely to be misled"
standard for substantial compliance. On the other hand, the Court seems
to leave open the possibility it will revisit the legal question after
the election should Prop. 77 pass. (Of course, if it passes, there are
a number of substantive challenges to the initiative that I expect to
be mounted.)
--
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