I attended oral argument this morning at the California Supreme Court. Although Prop. 77 failed at the polls, the Court denied a motion to dismiss the case as moot. I am very happy about that development, because, as I argued in a Daily Journal oped, the Court’s interim order created a great deal of confusion over the standards for taking an initiative off the ballot through pre-election review when the measure’s circulation fails to “substantially comply” with California law. Chief Justice George began the argument by expressly noting that Prop. 77 has this “life after death” so that the Court can give guidance for preelection review in the future. It is especially good that the Court can address this issue dispassionately now in a mooted case, rather than in the midst of an election campaign where its ruling is going to have important immediate political consequences.
It appears that at least four Justices (C.J. George, and Justices Baxter, Chin, and pro tem Justice Aldrich) will endorse a “likely to mislead voters test.” Justice Werdegar was the only Justice who expressed skepticism about this test openly (though I suppose Justice Moreno’s comments indicated some sympathy with this position as well; Justice Kennard, recovering from recent surgery on her leg, will participate in the decision but was not at oral argument). Justice Werdegar’s position was that examining discrepancies under a likely to mislead voters standard is going to inject the courts too much into the political thicket, putting the courts under a great deal of pressure in more of these kinds of high profile cases.
I think that Judge Werdgar has the better of the argument here, especially when coupled with the practical difficulties of implementing such a standard. As I noted in my earlier oped: “how does one prove that voters are likely to be misled? How many voters must have been misled before a court should remove a measure from the ballot?” The Chief Justice noted that there were no affidavits showing that any voters were misled in the Prop. 77 case, but it should be pretty easy in a future case to find someone who will claim to have been misled. For this reason, I much prefer the position put forward by the AG’s office: a bright line test is necessary to keep courts out of the political thicket, especially when it concerns an issue that is completely in the control of initiative circulators and where the penalty at most delays consideration by the voters rather than denies it entirely.
Two other issues of note at the argument. There was much concern from Justice Baxter about intentionality. Should it matter when a proponent intentionally fails to comply with an initiative requirement statute to obtain strategic advantage? Also, Justice Werdegar and others were concerned about the propriety of post-election review. She suggested courts were in an impossible situation when they would be asked to declare a measure passed by the voters void based on something that happened in the circulation process.
Part of the answer to this last question should come from legislative action. The legislature should change the initiative qualification schedule somewhat to allow sufficient time for judicial review. Right now, courts must work under tremendous time pressure and political pressure to try to achieve fair results in these cases.
An opinion should issue within 90 days of argument.