Monday, July 11, 2005

Can't Hardly Wait

Via The Roundup:

If you thought you'd have to wait until after November 8 for initiative litigation - think again. Late Friday saw AG Bill Lockyer file (or announce his intent to file, since I can't find much more coverage on the complaint) a suit intended to block Proposition 77 based on language discrepancies.

The suit should also helps establish Lockyer's name in his bid for Gover . . . . wait, I mean, for Treasurer.

Back to the snark-free, substantive discussion: Those of you who read Rick Hasen's Election Law Blog post about the substantial compliance doctrine might recall that fairly recent case law has construed the doctrine narrowly - employing it to save "emphasis" errors rather than "information" errors. Since the policy behind carefully tailored, full-disclosure, non-dodgey petitions is to prevent the hoodwinking of voters, the courts have routinely refused to use the substantial compliance doctrine to cure substantive defects affecting a petition's informative function. It has been used to allow petitions printed in the wrong font size to proceed.

At root is a voter's ability to intelligently exercise the right to vote, according to a 1934 case - an idea reaffirmed in a 1999 case: ""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."

In a side-by-side comparison, the differences between the version submitted to the AG and the one circulated to Californians are few and relatively minor - sorta. I say "sorta" because most people would, in fact, think there's not much of a difference between a body being tasked with "selecting" judges and on tasked with "nominating" judges. But you lawyer and nitpicky political types know and love/loathe the fact that such a word can carry the promise of months of litigation and policy review. There are also chunks of differing text in Prop. 77's findings and declarations. While these statements of policy aren't binding, they can provide valuable guidance to jurists interpreting a measure, especially if the questionable provisions lack sufficient ambiguity to allow consultation with outside sources.

Hasen thinks the proposition could get bounced and he's probably right. It would be a small but significant change in the doctrine's application were it allowed to smooth over substantive changes in language - no matter how seemingly insignificant or innocent they might be.


Anonymous said...

An interesting twist: both the SacBee and the LATimes state -- without attribution -- that Costa's side is asking the Court & SoS to put the circulated version on the ballot, not the "final" version they submitted to the AtG.

I'm no lawyer, but that sounds like an admission of a huge problem in their legal argument. Thoughts?

cd said...

I'm no lawyer yet either - though dangerously close.

However, no, I don't think that sounds like an admission of a huge problem. There's no hidden gotchas to be had here. You can do a side-by-side if you want and I think the major papers - and this blog - have covered the largest points of conflict.

There's an incredible amount of paper in any law firm - not hard to imagine a mistake being made. The law is relatively blind to the intent behind these mistakes, in this area anyway, and I've yet to see any credible (hell, any) evidence of intentionally misleading signature gatherers.

What it does sound like is an effort to stem costly litigation that might jeopardize a worthy reform.* The people get more leeway with mistakes than do legislatures, etc, so the problem might be overlooked. If the court has the authority to fashion the sort of remedy CostaCo is proposing here, they'd be right to grant it. Then voters would be voting on exactly what they'd signed.

Not that any - okay, maybe a few - actually read what they signed. But that's purely a technicality. Actual harm isn't such a big deal if it's a strict compliance situation.

*I'm not saying I love or will even vote for the Costa initiative. I'm not saying you should vote for it. It has problems: mid-decade redraw, etc. But it's better than SCA 3 is right now. And better than many other proposals. And we need it.

Anonymous said...

I'm curious about which law firm was handling the filing for Prop 77.

If the initiative gets tossed, it would seem like a fascinating malpractice case, since there would be lots of odd issues about just what the representation was intended to accomplish and whether those goals were achievable. Not that I expect something like that to be filed, but it would be possible.

Anonymous said...

I can only tell you which firm it wasn't . . . .