The California Secretary of State has filed this letter (via California Election Law) which explains that if the California Supreme Court decides it wants to keep Prop. 77 on display for the entire 20 day public inspection period, the current stay of the trial court’s order, due to expire midnight Sunday, must be extended 17 hours.
The letter goes on to say that immediately after the public inspection period, the Secretary of State must deliver the final version of the ballot materials to the printer. “Due to the strict printing and logistical constraints, the printing of the Voter Information Guide must proceed no later than this date and time. Accordingly, it is imperative that this Court rule on this matter by 5:00 p.m., August 15, 2005.”
I am wondering how imperative it really is. Suppose the Court waited and the materials appeared in the ballot materials. If the Court ultimately affirms the lower court, could not the Court simply order that the Secretary not count any votes cast for or against Prop. 77?
I had thought this is what happened in regards to the proposition at issue in Senate v. Jones back in 1999 (removing a redistricting initiative during pre-election review for violating the single subject rule), but that is not so. That case ended with an order “directing respondents to refrain from taking any steps to place Proposition 24 on the March 7, 2000, election ballot or to include the measure in the ballot pamphlet.”
Does anyone know of a situation where the California Supreme Court ordered votes not counted following pre-election review, after material had been printed in the ballot materials?
UPDATE: Tony Quinn sends along the following helpful information via e-mail:

I have results for all the statewide elections in California since 1920, and took a quick look at more recent years. I believe there were three instances of measures being qualified and then removed, but in no case were votes cast and not counted. In 1983, the Supreme Court removed the Sebastiani redistricting plan because it was a statutory intiative and the court ruled a “once a decade” constitutional redistricting rule made the Sebastiani plan unconstitutional. Interestingtly, Gov. Deukmejian had already called a statewide special election for that measure. With the measure being removed from the ballot, the election was cancelled.
Proposition 182 was removed “by law” in 1984. Proposition 24, another Costa redistricting initiative, was removed in 2000 for villating the Single Subject rule. Both were before the election
There are several cases of initiatives being declared unconstitiutional immediately after the election and never taking effect, the most famous being Proposition 14 in 1964 (open housing) and Proposition 187 in 1994 (illegal aliens.) An interesting case is Proposition 105 in 1988. This was a potpourri of consumer disclosures and it was ruled unconstitutional in its entirety after the election for violating the Single Subject rule. This Single Subject ruling came after the election, but the Court’s ruling taking Prop 24 off the ballot on the same ground, Single Subject violation, before the election suggests a greater willingness to take measures off the ballot for this reason.