The California Supreme Court issued an order today (see here, scroll down to last entry) restoring Prop. 80 to the ballot. The order reads:

Petition for review GRANTED. The stay issued by the Court of Appeal as part of its July 22, 2005, decision, restraining the Secretary of State from taking any steps, pending the finality of the Court of Appeal’s decision, to place Proposition 80 in the ballot pamphlet or on the ballot of the special election to be held on November 8, 2005, is vacated. As the Court of Appeal recognized, California authorities establish that “it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.” (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4.) Because, unlike the Court of Appeal, at this point we cannot say that it is clear that article XII, section 5, of the California Constitution precludes the enactment of Proposition 80 as an initiative measure, we conclude that the validity of Proposition 80 need not and should not be determined prior to the November 8, 2005 election. Accordingly, the Secretary of State and other public officials are directed to proceed with all the required steps to place Proposition 80 in the ballot pamphlet and on the ballot of the special election to be held on November 8, 2005. After that election, we shall determine whether to retain jurisdiction in this matter and resolve the issues raised in the petition. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.”

This is very interesting, and contrasts nicely with the California Supreme Court’s decision a few years ago in Senate v. Jones, 988 P.2d 1089 (Cal. 1999) to engage in pre-election review a few years ago to remove an initiative measure (on single subject grounds) that would have changed redistricting rules and the rules related to setting legislators’ salaries. In that case, Justice Kennard in dissent raised the same points raised by the Court’s order here.
What does this mean for review of the Prop. 77 litigation? Nothing directly. That case remains before the Third Appellate District. I have predicted (perhaps rashly) that there’s an 80% chance the trial judge’s ruling keeping Prop. 77 off the ballot will be affirmed. Part of that was based on my belief that in the summer the California Supreme Court seems pretty reluctant to get involved in these cases. So it may be that the California Supreme Court is more likely to eventually take a closer look at the merits of the Prop. 77 appeal than I had thought.