Ruling settles ballot dispute

The Sacramento Bee

February 17, 2006

Three months after California voters soundly rejected the Proposition 77 redistricting initiative, the state Supreme Court ruled Thursday that it was properly on the ballot.

The ruling was designed to set guidelines for future cases in which the legality of a ballot initiative is challenged prior to voting.

Ted Costa, who helped craft Proposition 77, applauded the court's order but quipped that he hardly considers himself the winner.

"Let's put it this way - it seems like you lose even when you win," said Costa, head of the People's Advocate watchdog group. "We lost at the ballot box."

Proposition 77 would have stripped from the Legislature authority to draw political boundaries and would have given it to a three-member panel of retired judges.

The high court ruled Thursday that "inadvertent" procedural errors were insufficient to disqualify Proposition 77 from the ballot because voters were not misled.

The court was split 4-2 on the key issue, known as "substantial compliance."

The majority opinion, by Chief Justice Ronald George, noted that Proposition 77's defeat in the November special election rendered the case moot, except as precedent.

The court fight began last July, when state Attorney General Bill Lockyer contested Proposition 77's placement on the ballot, saying state law had been violated in gathering signatures.

Both sides agreed that two versions of Proposition 77 had been used: one submitted to the attorney general's office as a legal prerequisite, the other to gather voter signatures.

Costa said the error, committed by one of his employees, was accidental.

The two versions differed in about a dozen places, some involving just a word or two, others whole paragraphs in Proposition 77's preamble.

In describing how candidates for an independent redistricting panel would be selected, for example, one document said the state Judicial Council would "nominate" candidates, the other used the word "select" instead.

Both documents mandated a 20-day selection process, but they differed by one day on when legislative leaders must exercise their prerogatives under the initiative.

Sacramento Superior Court Judge Gail Ohanesian and the 3rd District Court of Appeal upheld Lockyer's suit and tossed Proposition 77 off the ballot.

The Supreme Court overruled the lower courts in August. It ordered the measure reinstated, and ballots cast, while it considered legal arguments.

Two issues unresolved until Thursday were whether such challenges should be resolved prior to an election, and what standard should be used in deciding whether to disqualify an initiative.

The high court ruled that courts need not wait until after an election to decide lawsuits targeting a procedural violation.

While the textual differences in Proposition 77 were not insignificant, the court found, they were unintentional and did not mislead voters.

The high court said previous cases "implicitly recognize that inadvertent, good-faith human error cannot always be avoided."

The interests of massive numbers of voters who sign initiatives should not be thwarted by technical defects that mislead nobody, the court ruled.

If the mistake had been intentional, the court added, disqualification "might well be necessary" to discourage misconduct.

Attorney Lance Olson, who represented Democratic legislative leaders in the suit, called the Supreme Court ruling "unworkable" because it provides no clear standard for lower courts.

"The message is, you might as well go to the Supreme Court each time you think there's a problem with an initiative," Olson said.

"They obviously made the decision back before the election to put it on the ballot, and they had to justify that," he said.

Tom Dresslar, a Lockyer spokesman, declined to comment on the specifics of Thursday's ruling.

"It's time to focus on the future of the initiative process," he said.

The attorney general's office plans to meet with lawmakers, election officials and others to discuss how similar procedural errors can be detected before they become court fights, Dresslar said.