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.