I have now had a chance to give an initial read to the Supreme Court’s 4-3 decision on the Prop. 77 case, a decision that is going to be a very important one for some time to come in regulating initiative-related litigation in California.
First, the good news. At least six of the seven Justices appear to agree on the question of the propriety of pre-election review. (The seventh Justice, Justice Werdegar, would have dismissed the case as moot, but her explanation appears to indicate that she would agree with the other Justices as well). This appears to be the Court’s central holding on this point: “[B]ecause the question at issue in such a case is whether the initiative measure has satisfied the constitutional or statutory procedural prerequisites necessary to qualify it for the ballot, it is logical and appropriate for a court to consider such a claim prior to the election, because if the threshold procedural prerequisites have not been satisfied the measure is not entitled to be submitted to the voters. Unlike a challenge to the substantive validity of a proposed measure, it cannot properly be suggested that it would be premature to consider such a claim prior to the election, because the focus of the issue is solely upon whether the measure has qualified for the ballot, and not upon the validity or invalidity of the measure were it to be approved by the voters. 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 a 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.” Moreover, “Only when a court is confident that the challenge is meritorious and justifies withholding the measure from the ballot, should a court take the dramatic step of ordering the removal of a measure that ostensibly has obtained a sufficient number of qualified signatures.”
Perhaps equally important is this dicta that challenges to the substantive validity of a measure, such as whether in substance it would violate the U.S. or California constitutions, are more appropriate post-election. (See the opinion’s footnote 11: “See generally Gordon & Magleby, Pre-Election Judicial Review of Initiatives and Referendums (1989) 64 Notre Dame L.Rev. 298 (concluding that ‘it is generally improper for courts to adjudicate pre-election challenges to a measure’s substantive validity’ but that ‘pre-election review of challenges based on noncompliance with procedural requirements or subject matter limitations is proper’).”
Now, what I consider to be the bad news. As I had feared when the California Supreme Court issued its initial order in this case, the Court has now given judges a lot more discretion in deciding whether an initiative should be removed from the ballot when there is not actual compliance with the rules of the statute. The operative test appears to be the following:

Although each of the constitutional and statutory requirements at issue in these and similar past California cases was clear on its face and ostensibly not difficult to comply with, all of the decisions in this area implicitly recognize that inadvertent, good-faith human error cannot always be avoided and that it would be inconsistent with the fundamental constitutional interests of the tens or hundreds of thousands of persons who have signed an initiative or referendum petition to invalidate an otherwise qualified petition (and prohibit the matter from being
presented to all of the voters for their approval or disapproval) when it is apparent that the technical defect in question, as a realistic matter, did not adversely affect the integrity of the electoral process or frustrate the purposes underlying the relevant constitutional or statutory requirements. Under such circumstances, the controlling decisions establish that precluding an otherwise qualified initiative or referendum measure from being placed on the ballot is not an appropriate remedy.

The Court rejected a “bright line” rule:

At oral argument, the Attorney General strenuously urged the court to adopt a “bright line” rule under which any difference in meaning between the version of an initiative measure submitted to the Attorney General and the version circulated for signature would invalidate the circulated petition, without regard to the significance or insignificance of the particular discrepancy in meaning or to whether there is any realistic possibility that the difference or differences in question actually affected the actions of any person or the integrity of the electoral
process. The Attorney General argued that because the constitutional and statutory provisions requiring the proponents of an initiative measure to include in the circulated petition the same version of the initiative measure as that submitted to the Attorney General are not difficult to understand or comply with, any departure in meaning should not be tolerated. The Attorney General acknowledged that his proposed standard (requiring the invalidation of a petition if there is any difference in meaning in any aspect of the measure) would compel a court to withhold from an imminent election a universally popular and urgently needed “good government” constitutional initiative measure that had been signed by millions of voters, even if the only difference between the version submitted to the Attorney General and the version circulated for signature was an inadvertent mistake in the printing of an insignificant numeral (which by definition would always result in a change in meaning) that could not possibly have affected the decision of any signer, voter, or any other person. The Attorney General argued that this concededly “harsh” result is required to effectuate the applicable constitutional and statutory electoral provisions. The concurring and dissenting opinion of Justice Kennard embraces the Attorney General’s argument.

The Court found the argument inconsistent with California precedent.
What is the danger of this approach? Justice Kennard put it well in her concurring and dissenting opinion in footnote 3:

The majority also asserts that a rule barring submission of an initiative to the voters because of substantive disparities between the two versions of the initiative could compel a court to withhold from an election a “universally popular and urgently needed ‘good government’ constitutional initiative.” (Maj. opn. at p. 52, ante.) The rule could equally serve to withhold from an election a highly undesirable initiative measure. The majority’s argument is unsound, because the rule of substantial compliance does not, and should not, depend on the court’s view of the desirability of the initiative. Indeed, the majority’s comment highlights a major disadvantage of its approach – the risk that, with a vague and subjective substantial compliance standard, inappropriate considerations will actually influence a court’s substantial compliance determination, or that the public will perceive the court to be so influenced.

The last sentence is the key. The majority’s approach will lead to too much litigation where judges will be called upon to answer difficult questions in a very short time frame. The Court does not answer the questions I raised back in August: Under the new standard “how does one prove that voters were likely to have been misled? How many voters must have been misled before a court should remove a measure from the ballot?” As courts grapple with these questions, there will be ample time for “inappropriate considerations” of the merits of the initiative to creep in, or appear to creep in, to the judges’ decisions.