The notion that the Supreme Court's decision protects the right of the initiative is more slogan than analysis. The right of initiative, like other rights, is best protected by adherence to the rule of law, not by ad hoc judgments based on standards so loose that they are not standards at all. Jim and others under the impression that there only a "few picayune grammatical" differences between the two versions will be disabused of that notion if they look at the text of the proposition on the Secretary of State's web site:
http://www.ss.ca.gov/elections/bp_nov05/entire77.pdf
The text begins at page 23 of that document and consists of the "official" version filed with the AG, with handwritten changes to conform it with the circulated versions. You will see that there are a lot more than a "few" changes. You will also see that many of them are hardly "picayune." Nor are they all "grammatical." Deadlines are different, and an entire paragraph from the findings and purposes in the "official" version is omitted from the circulated version.
Although nothing turns on it, Jim repeats the false statement that there were a million voters who signed the petitions. The certified number of signatures was under 700,000, about 20,000 more than the required number.
Jim says nothing about the flagrant negligence of the proponents, who caused this problem because they could not be bothered to check that they had the right text on their petitions, and on their flagrant bad faith, when they concealed the discrepancies. They have not yet been willing to reveal how and when they discovered the discrepancies, but they have acknowledged it was in May. They sat on their knowledge until AFTER the Secretary of State had certified the qualification on Friday, June 10. The next business day, Monday, June 13, they met privately with an agent of the Secretary of State and disclosed the facts to that office. The Attorney General did not learn of the facts until July. His making it public was the first time anyone else in California was informed. In the meantime, most people interested in the proposition were relying on the official text, posted on the AG's web site.
Perhaps Jim does not mention the proponents' negligence and bad faith because he agrees with Judge Scotland, dissenting in the Court of Appeal, that the rights of the voters, not the conduct of the proponents, are what matter. That is a misstatement. Under current California law, proponents who collect signatures are not obligated to submit them to the state for counting. The signers' "rights" are entirely in the hands of the proponents. More importantly, Scotland's assertion, combined with the extremely loose application of the "substantial compliance" doctrine endorsed by him and, apparently by the Supreme Court, amounts to a license to steal. If the propriety of the proponents' conduct is irrelevant, then proponents can DELIBERATELY make politically motivated changes in the text of the proposition--file one version with the AG, which will be relied on by the press and organizations around the state that are formulating their positions, but a different version!
for circulation that will actually become law if the proposition passes.
My understanding (which in this instance is guided by Fred Woocher, making it considerably more reliable than my understanding would be unassisted) is that the Court of Appeal's extremely careful and well-reasoned opinion will be liquidated by virtue of the Supreme Court's order, but that the Supreme Court's order will not be published. In one sense, that means there will be no "precedent" established by this decision, so destructive of certainty and therefore supportive of favoritism in election law. That is a good thing. But the same lack of precedent-setting underlines the irresponsibility of what the Supreme Court has done. An excellent decision of the Court of Appeal clearly based on the law is overruled summarily, to place an initiative on the ballot that has not been qualified according to the requirements of law, but that is supported by the governor and other powerful interests. This is favoritism in action, the antithesis of law.
Jim makes an ad hominem argument, that "most of the challengers" are motivated by their opposition to this proposition. That is probably true, though it is probably also true of "most of" those favoring the proposition being on the ballot. That is the nature of the world we live in. Speaking for myself, I am certainly opposed to this proposition. But no more than I was opposed to the last redistricting initiative that qualified for the ballot and that was removed from the ballot by the Supreme Court for supposed violation of the single subject rule. I wrote an article sharply criticizing the Supreme Court in that case, because despite my opposition to the proposition, I did not believe it violated the single subject rule.
Jim says that in the future, the challengers may be glad of this decision, because it may help them get a measure on the ballot that they favor but that has not properly qualified. I was glad when the New Jersey Supreme Court allowed Frank Lautenberg to get on the ballot in the 2002 U.S. Senate contest, in the sense that I think it is a good thing for both major parties to have a candidate in a Senate race. But I thought it was a disastrous decision, essentially saying that the purpose of election law is to have fair elections and that specific requirements of the law, such as deadlines, can be set aside in the name of fairness. Many Republicans, perhaps including Jim, were outraged by that decision. It is impossible to say whether the New Jersey Supreme Court would have reached the same result if it had been the Republicans who acted after the deadline, and virtually certain it would NOT have done so if it had been some other party, such as the Libertarians. !
That is the consequence of replacing legal requirements with amorphous, ad hoc judgments. Today's (oops, yesterday's!) California Supreme Court decision is just as bad, and for the same reason.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of WewerLacy@aol.com
Sent: Fri 8/12/2005 8:11 PM
To: Rick.Hasen@lls.edu; election-law@majordomo.lls.edu
Subject: Re: Prop 77 back on ballot
I understand this is Rick's chain, but I respectfully don't see what is so "curious" about the order. A key characteristic of the California Constitution that differentiates our state from many others is the right of the people to enact legislation through the initiative process. It is an especially important function of our democratic system and an expansion of rights that deserves protection. To protect the system, and in this case the rights of the million voters that signed petitions, a few picayune grammatical issues should not be able to derail the rights of all those many who want to vote on this matter. The Supreme Court exists to resolve these issues and consistent with Assembly v. Deukmejian it did so, to protect the right to initiative. Most of the challengers in this case, in my opinion, have been motivated more by power politics than consideration for the consequences of their actions to the right to petition. If the facts were exactly the same but the ini!
tiative was about raising the minimum wage, most of the challengers to Prop. 77 would turn their legal arguments on a dime and would agree with what the Supreme Court did today. Someday, these challengers may be glad for the Supreme Court's decision.
James V. Lacy
Wewer & Lacy, LLP
Visit our website at www.wewerlacy.com <http://www.wewerlacy.com/> .