February 16, 2006

Proposition 77 Decision

Today the California Supreme Court issued its decision in the Proposition 77 case, which involved the propriety of pre-election review and the whether the differences between the version of the redistricting measure submitted to the Attorney General and the version circulated to and signed by voters were so significant as to justify its removal from the ballot. As to the latter issue, the Court, by a 4-3 vote, concluded that "[e]valuating the significance of the differences in the two versions in light of the legal standard established and applied in the numerous prior California decisions reviewed above, we conclude that although the variance in the two versions constituted a constitutional and statutory defect, the inadvertent differences at issue here did not mislead the public or otherwise defeat or undermine the fundamental purposes underlying the relevant constitutional and statutory provisions and thus there was substantial compliance with those provisions. Accordingly, we conclude that the discrepancies did not require or justify withholding the initiative measure from the ballot."

Significantly, however, the Court held that the trial court and court of appeal were correct in engaging in pre-election review. First, the court noted that the challenge was not to the substance of the meausre, but to its procedural problems:

"The legal challenge in the present case does not relate to the substantive validity of the initiative measure but rather involves a procedural claim pertaining to the preelection petition-circulation process. Past cases establish that, at least as a general matter, this type of procedural challenge -- that is, a challenge based upon an allegation that a proposed initiative measure has failed to comply with the essential procedural requirements necessary to qualify an initiative measure for the ballot (for example, an initiative petition’s alleged failure to have obtained the requisite number of qualified signatures) -- may be brought and resolved prior to an election."

The Court gave a second reason for finding pre-election review appropriate:

"Furthermore, once a measure has been placed on the ballot and has been voted upon by the electorate, California decisions have been most reluctant to overturn the results of an election on the basis of procedural defect that has occurred at the petition-circulation stage of the process, inasmuch as such a defect ordinarily will have no effect on the material that is before the voters or on the fairness or accuracy of the election result."

The Court concluded:

"In light of this well-established remedial limitation regarding postelection challenges, it cannot be said that there is no harm in postponing until after the election a determination of the validity of this type of procedural challenge to the petition-circulation process, because after the election the procedural claim may well be considered moot. Accordingly, we conclude that the trial court and the Court of Appeal did not err in entertaining the procedural challenge in this case prior to the election."

Accordingly, the Court affirmed the principle that pre-election review is appropriate where the challenge is to the procedure by which the measure qualified for the ballot.

Posted by Randy Riddle at February 16, 2006 01:33 PM