Whether "bait-and-switch" is intentional or not exists only in the mind of
the switcher. What this has done is given legal cover to "bait-and-switch",
even if it is intentional and even if it is covered up. There is little or
no incentive from now on to be concerned with what the Attorney General's
office writes. All the proponents need to is hope no one notices the changed
language before the signatures are submitted. And since signatures are
sumbitted in segments at different times, I'm sure some switchers in the
future will argue that to halt petitioning after the first signatures are
submitted would be a subvention of the rights of those signers. In the
legislative process we have "gut-and-amend", a procedure in which the entire
content of a bill is removed and replaced with totally new language at the
last minute and then acted upon without the benefit of full and lengthly
committee hearings. Republicans in the legislature have been screaming about
this for years and trying to eliminate it. Even the governor promised to
stop it. Now, however, this is exactly what the Reps have done and the
governor has blessed. Maybe they didn't eliminate all the original language
and replace it totally. But the certainly "amended" the measure after the AG
had handled it.
Larry Levine
----- Original Message -----
From: "Lowenstein, Daniel" <lowenstein@law.ucla.edu>
To: <election-law@majordomo.lls.edu>
Sent: Saturday, August 13, 2005 9:47 AM
Subject: FW: FW: Prop 77 back on ballot
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=18001-1900
0&file=18600-18603>
Article 2. False or Ineligible Signatures on Petition .......
18610-18614
<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-1900
0&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=18001-1900
0&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=18001-1900
0&file=18630-18631>
Article 5. Refusal of Circulators to Turn in Petitions ...........
18640
<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-1900
0&file=18640>
Article 6. Misuse of Signatures on Petition ......................
18650
<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-1900
0&file=18650>
Article 7. False Affidavits Concerning Petitions ............
18660-18661
<http://www.leginfo.ca.gov/cgi-bin/displaycode?section=elec&group=18001-1900
0&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=18001-1900
0&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/> .