In this post, I said I’d bet a court would order CA AG Kamala Harris to prepare a title and summary for the odious “shoot the gays” initiative. I base this on CA court cases refusing to engage in pre-election review of substantive constitutional standards. Not so fast says CA super-election lawyer Fred Woocher (in a post on the election law listserv, reprinted with permission here):

I’ll take that bet, Rick.  There is precedent in California at the local initiative level relieving city attorneys of the obligation to prepare a title and summary for a blatantly unconstitutional or invalid initiative proposal.  The same theory should apply to the AG’s office for a statewide initiative.  See, e.g., Widders v. Furchtenicht (2008) 167 Cal.App.4th 769; Jahr v. Casebeer (1999) 70 Cal.App.4th 1250.  And even in Schmitz v. Younger (1978) 21 Cal.3d 90, in which the California Supreme Court held that the AG could not unilaterally refuse to issue a title and summary for a statewide initiative based on his belief that it violated the single subject rule, the Court stated:  “This does not mean that the Attorney General may not challenge the validity of the proposed measure by timely and appropriate legal action. We hold only that without prior judicial authorization he may not delay or impede the initiative process while claims of the measure’s invalidity are determined.”  (Id. at p. 93.)

I don’t think any court is going to want to be responsible for ordering the AG to clear this initiative for circulation.

Fred could well be right, and I’ve learned long ago not to bet against Fred’s anallysis.  It will be interesting to watch.