The statutes cited by Jim do not impose an obligation on the proponents to submit signatures. The notion that the signers could sue the proponents to require them to do so is pure fantasy. The prohibition against paying proponents not to submit is a prohibition of corrupt conduct, not a protection of any "rights" of the signers.
The analogy to an injunction against speech because of a minor violation of some legal requirement is a false one. There IS a fundamental right to speech, especially strong in the face of prior restraints. Those who violate such laws (if the laws are constitutional) are subject to punishment, but by reason of the prior restraint doctrine, the punishment may not include suppression of the speech.
The proponents in this case were not guilty merely of clerical errors. Their cover-up during the long and crucial period up to and through certification was deliberate misconduct, as Coleman Blease clearly demonstrates in his majority opinion for the Court of Appeal.
Although Jim says he would agree with me in the case of a deliberate bait-and-switch, he does not explain how that can be reconciled with the view that only the "rights" of the signers should be considered, not the misconduct of the proponents. If the proponents deliberately file one version with the AG and circulate a different version, all of Jim's (and Judge Scotland's and, presumably, the Supreme Court's) arguments would be as applicable as they are in this case. Indeed, it is hard to see why they should be limited to circulating a single version under those viewpoints. If they decide to make "improvements" in the course of circulation, why should that frustrate the "rights" of the signers, so long as a court can be persuaded that the changes would not have affected the choice of most people to sign the petitions?
And since that kind of determination is inherently speculative (and one which judges are peculiarly unfit to make), the result is bound to be favoritism. It certainly is not law.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: WewerLacy@aol.com [mailto:WewerLacy@aol.com]
Sent: Sat 8/13/2005 9:08 AM
To: Lowenstein, Daniel; election-law@majordomo.lls.edu
Subject: Re: FW: Prop 77 back on ballot
I appreciate Dan's comments. The only point I concede is the picayune one made that I said there were a million signatures but that 700,000 were submitted. Perhaps Dan can consider how there may have been 1 million signatures even though 700,000 were submitted. But I'd allow the Professor to correct me on that one.
Your argument that the right in the California Constitution to petition is somehow lessened because proponents have the decision on submission s not a very convincing one. The Elections Code provides for this power as a time, place, and manner provision and it does not compromise the constitutional right and if it did, signers would have an action, wouldn't they? And the court would not allow such a time, place and manner provision to compromise a constitutional right, would they?
Take another look at the Elections Code. The proponents power is not intended to absorb all the constitutional rights of signers, by our constitution, or under the code. For example, a proponent may not accept money in an agreement to NOT file signatures. The rational for such a rule clearly establishes in the Code a recognition that the ultimate rights belong to the signers, not the proponent.
CHAPTER 7. INITIATIVE, REFERENDUM, AND RECALL
Article 1. Improper Signature-Gathering Tactics ............. 18600-18603 <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18600-18603>
Article 2. False or Ineligible Signatures on Petition ....... 18610-18614 <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18610-18614>
Article 3. Improper Payments to Prevent Petition Circulation
and Filing ....................................... 18620-18622 <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18620-18622>
Article 4. Threats and Theft to Prevent Petition Circulation
and Filing ....................................... 18630-18631 <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18630-18631>
Article 5. Refusal of Circulators to Turn in Petitions ........... 18640 <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18640>
Article 6. Misuse of Signatures on Petition ...................... 18650 <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18650>
Article 7. False Affidavits Concerning Petitions ............ 18660-18661 <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18660-18661>
Article 8. Filing Petitions to Defeat an Initiative or
Referendum ....................................... 18670-18671 <http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-19000&file=18670-18671>
Proponents are essentially trustees of the people's rights for time, place and manner purposes. Where proponents are sloppy, a proper balancing protects the right of the people. Where proponents are deliberate in a bait and switch, the people's right is compromised and this justifies action to protect the integrity of the process.
But the integrity of the process is not served by screwing the people in their legitimate right to vote on an issue clearly established in the context, and sullied only by some poor penmanship or other clerical details. Once again, you put form before substance of the right. If this was a case of a slate card publisher have forgotten to put an asterisk on one name out of 100 on his slate mailer, I know you would argue that the fundamental right to speech trumps the human error and that an injunction against the mailing would not be called for. Knowing that is how you would come out on that issue, why would you think in this case that the right to petition deserves any less protection in law for a human error that is irrelevant to the ultimate right to be exercised? There was no factual finding of actual "bait and switch" in this case that I am aware of. If you are concerned about "deliberate" bait and switch that compromises the people's right, then I would agree with y!
ou. But those facts are not established in this case and they really do not exist at all. These were clerical screwups that don't change the meaning of the initiative.
James V. Lacy
Wewer & Lacy, LLP
Visit our website at www.wewerlacy.com <http://www.wewerlacy.com/> .