*1 Feb. S136294. [No. 2006.] Petitioners, al., v.
EDWARD J. COSTA et COUNTY, THE SUPERIOR COURT OF SACRAMENTO Respondent; al., et Real Parties Interest. BILL LOCKYER *7 Counsel
Gibson, Crutcher, Dunn & Daniel M. G. Charles Nierlich and Kolkey, Rebecca Justice Lazarus for Petitioners.
No appearance Respondent. General, Medeiros, General,
Bill Lockyer, Manuel M. State Solicitor Humes, General, Mauro, James M. Chief Assistant Louis R. General, Frank, Assistant Richard M. Chief Deputy Attorney General, Woods, E. R. Christopher Krueger, Leslie J. Lopez, Douglas Morazzini, Leach, P. Vickie Zackery P. and Susan K. Whitney Deputy General, for Real Attorneys Party in Interest Bill Lockyer.
Olson, Fishburn, & Deborah Hagel B. Lance H. Olson and Caplan, Richard C. Miadich for Real Party Interest Californians for Fair Represen- tation—No on 77.
Knox, Knox, Lemmon and Thomas S. de La Anapolsky, Angela Schrimp McPherson, Vergne Glen C. Hansen for Real in Interest Bruce Party of State. Brandt, Linda A. Cabatic for Real in Interest Geoff Printer Party Acting State State of California. *8 Opinion
GEORGE, 77, C. from a to legal challenge Proposition This casearises J. an measure that to California voters at the November initiative was submitted 8, 2005, the statewide The to measure underlying challenge election. special but was after circulation of the initiative was brought completed prior the the ballot to the to of State’s submission of materials Secretary pamphlet Printer, the State and the measure ballot sought to have withheld measure that because of several differences between version of the was to the circulation of initiative submitted to General prior was version petition, subsequently printed (in court and the circulated for trial Court signature. Appeal decision) between two two-to-one concluded that discrepancies ballot, court, measure from the but this versions warranted withholding submission of acting Secretary on an basis of State’s expedited prior review, determined that granted ballot materials to the printer, pamphlet the measure from the withholding did discrepancies question justify ballot, and directed the of State include in ballot pamphlet had and on the election ballot the version of the measure that been circulated for number of voters. Our signed by signature requisite qualified order would after the review also stated that we determine election granting resolve, whether to retain in this matter and a full jurisdiction opinion, issues presented. 8, election,
At the November 77. Proposition voters rejected challenge the defeat of 77 renders moot the Although Proposition legal measure, matter that we retain this we nonetheless have concluded should cases, for both with issue an in order to future provide guidance regard opinion review of this challenge whether procedural question preelection type with regard initiative measure to the substantive legal appropriate whether standard that is determining type discrepancy applicable was in this case an initiative measure from the withholding involved warrants ballot.
I We features of Proposition begin principal then the events that resulted in the between version describe discrepancy and the measure that was submitted to initiative that was circulated signature. version for
A Costa, Edward J. Chief Executive Officer of During petitioner Advocate, Inc., General, preparation submitted People’s a title and alternative measures summary, involving several pro- is, (that in the posed changes redistricting process adjusting procedure districts), the boundaries of election the initiative measure at issue including case.1 present that, certification, The initiative measure here at issue—the one after was 8, 2005, 77 on the November election designated Proposition *9 to amend the California Constitution to transfer ballot—proposed power to draw election from the districts to a three-member Legislature panel retired federal and/or state who would act as masters judges, special developing redistricting elections to state Senate and plans Assembly, the Board of and California districts of the United Equalization, congressional States House of The the addition measure of new Representatives. proposed substantive criteria that the would be masters to follow in special required formulating (1) with to redistricting plans, including regard state legislative districts, and Board of a differ- Equalization requirement population ences among (2) districts not exceed 1 a that Senate percent; requirement districts, districts be of two comprised adjacent Assembly and Board of districts; districts be Equalization comprised (3) Senate a adjacent directive that all redistricting minimize the plans of counties and splitting districts; cities into multiple a limitation precluding special masters, boundaries, from drawing information to considering relating Const., XXI, 2, voters’ political (Cal. affiliation. party art. subds. proposed § (a)—(/)-)
The measure also set forth a detailed the selection of procedure govern masters. It directed the special Judicial Council—the constitutional entity Const., VI, with the charged administration of the (Cal. branch art. judicial 6)—to a § retired federal and state compile pool judges eligible willing to serve on the and then to select from the a panel,2 randomly list of pool with the judges, requirement affiliated with the two judges largest political Thereafter, be on the parties equally list. each of the four state represented legislative leaders of the Senate (two and the from the Assembly majority and two from the party minority (from was to nominate party) 24-judge list) three who were judges not members of the same as the political party 7, 2004, prior record indicates that to the December submission of the measure here at issue, Costa year earlier in the submitted three proposed redistricting different measures to the 8, 2004, preparation summary—one General for of a title April May one on 13, 2004, and one on October 2004. measure, judge ineligible Under the a retired special was to serve as a master if he or she office, partisan changed had held political party being his or her appointed affiliation after bench, addition, past year or received income over the specified political sources. In if master, special selected to serve as a judge required the retired was pledge to run for office in years, of the districts created and accept, public not to for at least five state (other Const., employment (Cal. judicial employment teaching than or a position). proposed XXI, (c), (2), (A)-(B).) art. subd. par. subpars. § (No a new list of 12 nominees. retired making nomination—creating leader legislator.) legislative could be nominated more than one Each judge by one challenge against leaders then was authorized to exercise peremptory leaders, the other leaving who had been nominated one of judge legislative list, list from this three eight Ultimately, judges of at least nominees. reduced at least one from of the two were largest political each (including parties) Const., (Cal. chosen lot to serve as the master three-judge special panel. XXI, (2), (A)-(F).) art. subd. (c), subpars. par. § The measure also devising redistricting plans, provided would be to hold at three hearings, masters least special required one masters’ initial had hearing plan after including special been for comment. Under the Legislature submitted proposition, final for the state Senate and Board of redistricting plans Assembly, Equaliza- tion, the California districts were to be aby congressional approved that would unanimously by three-judge resolution single adopted panel State; filing become effective with the immediately upon *10 resolution to be used for the districts created masters’ were by special and next statewide elections. measure also primary general provided created were to be submitted to redistricting masters plans by special election, and, voters, at the next if voters general approved by until embodied in those were to continue to be used new districts plans If were the next decennial census. following drawn redistricting plans election, at the officials elected by general were voters plans rejected terms, were authorized to serve full but under the nonetheless rejected plans and were to be new districts redistricting process begin again was XXI, Const., 1, (Cal. in art. for use elections. prepared subsequent proposed § (f)-(i).) subds. under the the measure that the initial
Finally, provided redistricting process of the begin immediately new was voters’ upon approval procedure measure, to be with the selection of the master three-judge special panel days panel within measure completed adoption a and deadlines establishing timely with schedule to ensure charged adoption of new districts for use the 2006 statewide elections. general primary Const., XXI, (Cal. (b).) art. subd. §
B measure are at issue in case Both versions initiative ante. As although contained all of the described we shall explain, features in the two versions question, there were some substantive differences measure as a whole. differences were minor relation to are relevant Because the events resulted discrepancy us, detail. forth those events in some of the issue before we set resolution 3, 2004, an who had On December Daniel M. Friday, Kolkey, attorney issue, initiative at been retained Costa to assist in by drafting redistricting others, then most attaching Kolkey’s sent an e-mail to Costa and message convenience, (For current draft of the initiative measure. we shall observe, version.) refer to this draft as the December 3 As we subsequently the December 3 is the one that was set forth in the version ultimately that was circulated for number of signature signed by required voters, was in the ballot and was submitted to eligible printed pamphlet, voters at the November election. 6, 2004, version,
On December edited the December 3 Monday, Kolkey are making number and substantive—which set changes—both stylistic (We forth in full in an to this shall refer to this version appendix opinion. version.) the December 6 The most made significant changes by (1) on December 6 involved a substantial revision of the Kolkey wording section of the initiative introductory setting forth Declara- “Findings post, (see 1040-1041), (2) tions of reduction Purpose” appen., pp. one-day in the time in which the leaders were to make their periods legislative nominations and exercise their the final list peremptory challenges creating (see judges which masters were to be chosen lot special that, appen., post, 1042), statement p. explicit regard the initiative and redistricting process, referendum was to be used power only in the manner (see 1045).3 in the initiative measure appen., post, p. specified 6, 2004, On December Monday evening, sent the December 6 version Kolkey of the initiative measure to Costa e-mail. *11 Adams, the office and
Emily manager, for secretary, receptionist People’s Advocate, Inc., was for and track of responsible organizing keeping various versions of initiatives on which Costa was that had been working directed to her attention. Adams’s was to label each version practice provided her, format, retain it in electronic and mark all final On versions as such. 7, 2004, December Tuesday, Adams for Costa’s a cover prepared signature letter to the submission to the General the initiative accompany Attorney here at measure issue. When the letter was sent to the General on Attorney that same it contained the day, December 6 version of the initiative. proposed General,
Trida the initiative coordinator for the received Knight, Attorney the letter from Costa with the December of the initiative 6 version proposed stylistic changes— Other revisions made in December 6 version included number of (appen., post, p. including changing 1042), the words “nominate” to “select” “selected” (appen., post, post, 1042), “appointed” “provided specified” p. (appen., for” “as 1044)—and p. wording dealing procedure a revision of the of one sentence with the to be drawing by special utilized should the final lot fail to each of include least one master from political parties. (Appen., post, largest 1043.) the two p. 7, 2004, day, acknowledging to Costa same on December replied General’s office Attorney of the submission and explaining receipt and the to the Legislative Analyst had sent of the initiative proposed copies and that these entities Finance for an estimate of fiscal impact, Department letter stated that after had 25 in which to return the estimate. Knight’s days entities, General would Attorney the estimate was returned these Costa that The letter also advised days. a title and within summary supply initiative measure to the submitted substantive amendments any proposed on or before December could be General Attorney only accepted is, initial of the (that within 15 of the submission days proponents’ have to measure), that after that date substantive amendment would have to anew. begin a new measure and the would be submitted as process 28, 2005, a letter from Costa General received Attorney On January proposed the names of three additional adding persons Costa, letter from this letter initiative at issue. Like the December 7 measure of the initiative. also attached the December 6 version 3, 2005, its General’s office had On after February completed measure, sent the title and Knight copies preparation the measure to Costa and the other them and the December 6 version of State, of the Assembly, the Chief Clerk Secretary proponents, the Senate. and the to the Attorney
At some after his submission of measure point 7, 2004, title but to his General’s on December prior receipt Costa decided to have the text of and summary, the commencement for in order to expedite measure prepared printing filed in the underlying of the initiative In a declaration circulation petitions. the text of that he was concerned about fitting Costa explained proceeding, section,4 and sized the entire initiative on the back of a reasonably before laid out as as possible wanted to have the measure completely end, Costa To this summary. General’s title receiving Norton, of the initiative to Heath directed Adams to a copy provide was to format measure Advocate’s who expert, People’s computer the file on her onto a disk Adams downloaded floppy submission printing. *12 4 (Elec. eligible signature. that circulated to voters “petition A section” is the document is Code, 9020.) “[a]ny initiative or referendum provides Code section Elections 9014 § sections, copy and correct each shall contain a full may presented be in but section petition printed type not The text of the measure shall proposed the title and of the measure. text 9030, (a) provides subdivision further point.” than Elections Code section smaller county city and elections official of the or shall be filed with the petition section of “[e]ach circulated, county any county city all sections circulated in county in which it was but shall be filed at the same time.” indicated, are to the Elections Code. all further references Unless otherwise the disk to gave Submission Final” labeled
computer “Dec[ember] time, the circumstance at the Norton. Adams was unaware of this Although December disk was the actually that she downloaded onto floppy version initiative, the December 6 version.5 Norton version of the proposed of the disk to a mockup petition. used the version on the floppy prepare for the General’s title and Attorney summary Once Costa received 2005, directed Norton initiative at the Costa beginning February it to the add the title and to the formatted and send petition so, using Norton did and the sections were printed printer. petition months, the next three December 3 version of the initiative measure. During and from May sections were circulated to the for signature, petition 10, 2005, to local 5 to sections of the were submitted May signed petition all, In more than election officials the state for certification. throughout 950,000 individuals the circulated signed petition. 2005,
Sometime in to local after the had been submitted mid-May petitions election but officials before measure had been certified for ballot by State, the text Secretary Costa learned that Kolkey measure on the circulated was the December 3 version of petitions measure and not the December 6 that had version been submitted General. After this reviewed the differences in discovery, Kolkey matter, he, the two measures and conducted research on the but neither legal Costa, nor else anyone revealed the either immediately discrepancy of State or to the Secretary General. 10, 2005,
On June of State certified that the Secretary initiative measure had been a sufficient number of voters signed by qualified ballot, for the and sent letters to the Chief Clerk of the qualify Assembly Senate, and the to section Secretary notifying pursuant that the initiative had for the ballot.6 In Legislature transmitting qualified of the initiative measure to the Senate and the copies Assembly, required circumstance, When Adams later learned of this computer she reviewed all her files and nothing found that she did not have the December 6 version in electronic format. There the record that further explains discrepancy. 6 Although Appeal questioned neither the trial court nor the Court of whether the measure ballot, requisite signatures party had obtained the number of for the real in interest qualify (hereafter CFFR)—the Representation—No party representing Californians For Fair opponents noting during early stages point, measure—contests process county certification petition several election officials discovered that some of the support actually petition sections that were submitted in of this measure were sections for one redistricting more other measures that Costa earlier had submitted to ante.) (See summary. p. problem for title and fn. As soon as this was discovered, however, county in each State notified the local election official carefully review sections that had been of this measure before support submitted count, performing the raw and to return to the all sections that did not *13 9034, the December 6 version of the of State transmitted Secretary section General. Attorney initiative that had been submitted 12, 2005, of State asked to meet with Undersecretary On June Kolkey 2005, 13, Kolkey the initiative measure. On June William P. Wood about met (who then the Affairs Legal Secretary) Peter was Governor’s Siggins the two versions of the with Wood and disclosed the concerning problem memorandum, dated June Wood a Kolkey gave lengthy initiative measure. that, 10, 2005, the view a detailed legal argument forth setting supporting versions, in the two the version notwithstanding discrepancy signature signed initiative measure that had been circulated for on the ballot. number of voters should be placed requisite qualified 23, 2005, Costa asking General received a letter from Attorney On June ballot title to reissue for the ballot same General Attorney pamphlet he had for the initiative measure prepared 3, 23 letter from Costa to the General Attorney 2005.7 The June February the two versions of the text. made no mention of the problem concerning of State delivered a letter to Secretary On July General, come to the attention of him that situation has advising “[a] . . . the title given of State’s office Secretary concerning office,” and Initiative Constitutional Amendment’ by your ‘Reapportionment text the initiative set forth in the circulated petition that the explaining General for the differed from the text that had been submitted to The letter asked for the Attorney of a title and summary. preparation to make authority of State has Secretary General’s “whether guidance the text of a measure should be placed a determination which version of of State included with the letter a copy before the voters.” The Secretary given memorandum that had been by Kolkey legal prepared of State on June 13. Secretary Amendment”) appended Constitutional was (“Reapportionment. contain the title Initiative suggests county officials failed to follow Nothing here at issue. to the initiative Further, that all of although additionally complains proof that there is no this instruction. CFFR actually contained the text of the December 3 petitions with the correct title the initiative conclusion, and, version, contrary support evidence below to a present CFFR did not noted, decision to withhold Appeal purported to base its neither the trial court nor the Court circumstances, reject ground. we CFFR’s from the ballot on this Under these the measure Secretary theory rulings should be sustained on contention that the lower court signatures of valid requisite number certifying erred in that the measure had obtained State a further factual permit should be remanded to qualify for the ballot or that the matter
inquiry question. into this ballot, placed is to be on the once it is determined that measure Under section title for each of State ballot provide “shall and return to the voters of the whole state.” measure submitted to *14 State that 6, 2005, the Secretary General informed Attorney the July On 7, 2005, this matter. On July the of State in Secretary he could not represent General, that he had of State stated Secretary in a letter to the Attorney the measures to the voters of California duty present “the constitutional signatures people” on the ballot by that have qualified appear a court.” directed to do otherwise by intended to do so “unless and that he 8, 2005, the underlying General filed Attorney on July The next day, court, an order seeking prohibiting in the for writ of mandate superior of the initiative measure either version of State from Secretary placing 8, 2005, election ballot. the November special that because the version General took the position The Attorney the version submitted for differed from signature initiative measure circulated title and neither version summary, properly General Attorney argued of the measure for the ballot. In response, proponents qualified between the two was inadvertent and that the differences discrepancy summary affect the of the title and accuracy versions were minor and did not they maintained General. Attorney proponents prepared with the constitu- be found to have substantially complied applicable should tional and statutory provisions. 22, 2005, and a court
On after July briefing hearing, superior expedited entered in favor of the writ judgment proceeding, 77 on of State not to version of directing Secretary Proposition place found that the discrepancy the ballot. court Although superior expressly mistake,” inadvertent the court between the two versions was “the result of an that “the of the constitutional and statutory requirements determined purposes the substantial be frustrated if the court were to apply issue would clear in this situation.” doctrine to excuse the defects compliance 25, 2005, writ 77 filed a On July proponents Proposition rendered to overturn the judgment of mandate in the Court of Appeal, seeking Secretary stay court and requesting temporary permit superior examina- available for of State to make the 77 materials Proposition 15, 2005, delivery deadline for tion for the before August requisite period (§ 9092.)8 The Court of Appeal of the ballot to the State Printer. pamphlet and the Secretary stay, that same day granted requested temporary included both the of the ballot pamphlet State’s subsequent public display initiative, with a December 3 and December 6 versions court order. that the matter was to further subject notation days “Not less than 20 before he or she submits provides part: Section in relevant Printer, copy Secretary of State shall make the pamphlet for the ballot to the State copy public examination.” available for 27, 2005, On filed a for writ of July supplemental petition mandate, of State had stating requested General to a title and for the December 3 version of the provide initiative measure that had been circulated for but that the signature, General had taken the that he would not ballot label or provide position *15 title and that of the measure. The ballot for version summary supplemental direct the General to Attorney the Court of petition requested Appeal the December 3 a ballot label and ballot title and for provide summary version of the measure in order to avoid a claim of with the noncompliance of section should the Court of determine that the 9092 requirements Appeal December 3 version of the measure should be on the ballot.9 placed 28, 2005,
On the Court of issued an alternative writ Thursday, July Appeal the schedule and on original petition, establishing expedited briefing 5, the matter for on 2005. setting argument August 29, 2005, after from the On Friday, July considering opposition Attorney 999, 6, (see ante), General and CFFR fn. the Court of issued a p. Appeal order, and further the General to a ballot label directing Attorney provide and the the title for December 3 version of measure summary order, August had been circulated for Pursuant to that on signature. Monday, 1, 2005, and the General submitted to the Court of a title Attorney Appeal for the December 3 version. the title the summary Although by provided the the word General for December 3 version substituted “Redis- Attorney the General in the for tricting” Attorney acknowledged “Reapportionment,” Court of that the substitution was made differentiation only Appeal permit the title and the the summary by two versions of summary; provided for the December 3 did not material Attorney vary General version had from the of the measure that the General summary Attorney respect 6 of the measure.10 the new Although December version prepared 2005, Earlier, 13, July manager Program and Initiatives of Pamphlet on of Ballot Legislative Secretary of State’s Elections Division had delivered a letter to the Office of Counsel, process, requesting Legislative part pamphlet preparation Counsel as ballot pursuant prepare proofread to her duties under Elections Code section signature. that had been circulated for Section December 3 version of initiative measure Legislative prepare proofread “The Counsel shall the texts of all measures provides: repealed which are or revised.” (on 2005) summary February by Attorney General for the prepared The title provided December 6 version full: INITIATIVE CONSTITUTIONAL AMENDMENT. Amends state “REAPPORTIONMENT. Senate, redistricting Assembly, Congressional and Board process Constitution’s California’s legislative judges, by Equalization Requires panel districts. three-member of retired selected leaders, again after each national census. adopt redistricting plan passes new if measure hearings. legislative proposals/comments public and hold Redis- Panel must consider by judges’ and filed with tricting plan immediately adopted panel becomes effective when reject redistricting plan, process repeats. Specifies subsequently of State. If voters did not to the Court Appeal by submitted measure, contends no party the fiscal analysis impact
include an would affect 6 and December versions the December variations between Legislative Analyst the measure of the fiscal impact estimate General’s of Finance that was included and the Department summary. initial 5, 2005, and Friday, heard on argument August
The Court of oral Appeal majority opinion 2005. Tuesday, August issued its opinion that, initially concluded Court of two signed justices, Appeal, was matter, challenge resolution of election-law procedural preelection at issue challenge nature of the and was warranted in light permissible merits, the Court of concluded Appeal majority in this case. Turning between version light discrepancies circu- General and version initiative measure submitted to *16 lated that neither version should correctly for the trial court held signature, 8, 2005, A third to the at the November election. special submitted voters dissented, that resolution maintaining preelection Court of Appeal justice merits, warranted, on the and further that the challenge concluding was not the did withholding between the two versions not justify discrepancies from ballot measure and signature signed the the version the circulated for the number of voters. by qualified requisite 2005, 10,
The the following day, Wednesday, August proponents court, filed an for review this proposition requesting emergency petition and that immediate consideration trial court’s order stay prohibited the to 77 on Secretary State action taking place Proposition 8, 2005, November ballot. for review noted election The special petition redistricting to judicial adopted plan; plan requirements, time for review of fails to conform if Legislative Analyst and may Summary by court order of estimate Director plan. new government: This have the Finance of fiscal on state and local measure would impact costs, major redistricting totaling a few following impact: probably fiscal One-time state (once savings redistricting every ten million dollars. for each effort after 2010 Comparable years).” 1, 2005) (on August The and General for prepared title December 3 version provided: “REDISTRICTING. “(cid:127) INITIATIVE CONSTITUTIONAL AMENDMENT. Senate, Congressional Assembly, and Board process redistricting Amends for California’s Equalization districts. “(cid:127) leaders, to new judges, by legislative adopt Requires panel of three retired selected redistricting plan passes if after each national census. measure and “(cid:127) public hearings. legislative, public Panel must comments/hold consider “(cid:127) State; Secretary of Redistricting plan adopted and filed with panel effective when reject governs plan. voters primary/general next statewide elections even if “(cid:127) reject redistricting rejected plan officials under plan, process repeats, voters but elected If serve full terms." (cid:127) days redistricting judicial adopted plan.” review of Allows to seek the deadline for the of State submit the Secretary to ballot materials pamphlet 15, and Monday, was the printer following August urged to and grant court review of State to take the actions permit Secretary ensure that voters would have the vote on necessary opportunity to 77 at the election. Proposition November 11, 2005, CFFR Thursday, on filed following day, August separate review, answers to for and the filed emergency petition reply on Friday, August 2005. afternoon, 12, 2005,
On Friday after filed August considering materials court, with taking into account Secretary State’s Monday, 15, 2005, deadline 5:00 August ballot p.m. submitting pamphlet (the materials to State informed the court printer Secretary having the deadline had to be met in order to ballot to be permit pamphlets printed mailed voters within the this court statutorily prescribed periods), order, issued an four which signed by (1) justices, granted review, (2) that had stayed court directed judgment superior of State version of 77 on the Secretary place any Proposition 8, 2005, ballot, (3) November election directed the of State special and other all the officials public proceed required steps place 8, 2005, ballot ballot of November election pamphlet version 77 included circulated Proposition petition signed by is, version), number of (that voters the December 3 requisite qualified official other who had an provided “[a]ny has not person to revise statements or ballot that have been opportunity arguments already *17 submitted to the of Secretary State in order to reflect the version of 77 that will in the and election on the ballot shall Proposition appear pamphlet be to submit a revised or ballot to permitted Secretary statement the argument 15, of State later than on no 3 2005.” The order further p.m. Monday, August that, election, stated after the this court would whether to retain determine jurisdiction this matter resolve the issues raised in the petition. issued, and
After our order to the of State’s submission of prior Printer, the ballot material the General State pamphlet submitted title and a of the December 3 version that included the summary identical had fiscal that been included in the General’s analysis version, the of December 6 and the added measure opponents a to 77 both their rebuttal to the in favor passage argument Proposition 77, to their “two three against courts and argument Proposition stating ruled that this be on ballot.” judges already have measure shouldn’t even No was made ordered analysis Legislative to As change by Analyst. court, the 3 this December version of measure—the version included by circulated signature signed number by requisite voters—was set forth in full in the ballot pamphlet. 2005, election, 8, was upon voted Proposition
At November moot the legal 77 renders the defeat of Although Proposition defeated. this we have at the outset of opinion as noted challenge proposition, this matter and issue that this court retain that it is concluded appropriate to this (1) type challenge review of to whether clarify preelection opinion standard that (2) the legal applies measure is appropriate, an initiative in this case warrants involved determining discrepancy whether type measure from the ballot. an initiative withholding
II
to an initiative
of challenge
turn first to
whether
type
We
question
a
that an initiative measure should
measure
in this
claim
case—namely,
raised
to
the measure submitted
not be
ballot because
version of
placed
signature—
differs
the version circulated for
ordinarily
preelection
judicial
is
review
instead
subject
appropriately
has
a court
the measure
been submitted
only
should
considered
after
has
the voters and
election
been held.
rule,
that, as a
“it is
general
Past California decisions have observed
and other challenges
more
review constitutional
usually
appropriate
rather
than to
initiative measures after an election
ballot
propositions
the electoral
exercise of
people’s
disrupt
process
preventing
franchise,
(Brosnahan v.
in the absence of some clear
showing
invalidity.”
I).)
(Brosnahan
Eu
31 Cal.3d
641 P.2d
Cal.Rptr.
[181
200]
however,
in Senate
the State
Cal. v. Jones
(1999) 21
More recently,
Jones),
(Senate
v.
noted
P.2d
we
Cal.4th
Cal.Rptr.2d
1089]
[90
Brosnahan I “have
after
rule
general
that decisions
applies
explained
a
challenge
alleged unconstitutionality
when
rests
primarily
upon
initiative,
rule
not
substance of the
and that
does
preclude
claim,
based
preelection
challenge
example,
review when
upon
to the voters
measure
be submitted
may
properly
it amounts to
legislative
because
measure is not
in character or because
(21
revision rather than an amendment.
Cal.4th
constitutional
[Citations.]”
*18
itself,
In the Senate v. Jones decision
1153.)11
held that a constitutional
we
p.
a
rests
a claim that
initiative measure violates
challenge that
upon
proposed
case,
and
an
be considered
may,
the
rule
single-subject
appropriate
election,
provision
that the constitutional
resolved prior
emphasizing
limitation
its
terms
establishing
single-subject
by
explicit
contemplates
the
and
Pre-Election Judicial Review
Initiatives
generally
Magleby,
and
See
Gordon
(concluding
generally
(1989)
improper
“it is
64 Notre Dame L.Rev. 298
that
Referendums
validity” but
that
adjudicate
challenges
to a
substantive
pre-election
courts to
measure’s
or
challenges
procedural
requirements
“pre-election
noncompliance
on
with
review
based
subject
proper”).
matter limitations is
and
possibility
review in
that
propriety
preelection
providing
“[a]n
initiative measure
more than one
embracing
may not be submitted to the
subject
Const.,
II, 8,
(Cal.
added.)
electors
have
effect.”
(d),
art.
subd.
italics
§
legal
case
relate
challenge
does not
to
present
substantive
initiative measure
a
validity
but rather involves procedural
claim
to
pertaining
Past cases
preelection petition-circulation process.
that,
matter,
establish
least as a general
type
procedural challenge—
is, a
based
an
that a
challenge
upon
allegation
initiative
proposed
measure has
to
failed
essential
comply
procedural requirements
necessary
(for
to
an initiative measure for the ballot
an
qualify
example,
alleged
initiative
failure to have
petition’s
obtained
number
requisite
be
qualified signatures)—may
brought
(See,
resolved
to an election.
prior
(1982)
v.
e.g., Assembly Deukmejian
30 Cal.3d
646-654
Cal.Rptr.
[180
P.2d
decision
of a
considering
effect
[preelection
variety
939]
defects in referendum
alleged
claim that text of
petition, including
measure
printed
varied from text of the enacted
petition
measure that was
referendum];
of the
v.
subject
(1938)
Jordan
Furthermore, once a has ballot measure been on the and has placed electorate, been voted California decisions have been most upon by reluctant overturn results of election the basis of a procedural defect that has occurred at the petition-circulation stage process, *19 inasmuch as such a defect will have no effect on the material that ordinarily
1007 (See, or of the election result. accuracy is or on fairness before voters 128, 132 P.2d (1939) v. Los 14 Cal.2d 1014] Lenahan e.g., City Angeles [92 of moot after recall of recall held sufficiency to form and [challenges or held, deficiencies that none “of the alleged election was emphasizing recall pre- and certification of the irregularities presentation election”]; v. Anchundo a full and fair vote at the recall Mapstead vented 246, to [challenge (1998) Cal.Rptr.2d 272-277 602] Cal.App.4th [73 became moot once election signatures of to referendum sufficiency qualify 657, held]; (1986) 187 659-662 referendum was Chase v. Brooks Cal.App.3d ballot measure and material accompanying Cal.Rptr. [232 65] [because “[t]he contents complete informed electorate breadth adequately ordinance,” held has the election is electorate challenged “[office failed it moot whether the referendum petitions comply becomes spoken, 4052,” that referendum section which required municipal [former] text that subject contain entire of the ordinance is petitions 606, referendum]; (1972) v. 608-609 Long Hultberg Cal.App.3d [103 the election itself election has been held and fairness of Cal.Rptr. 19] [when attacked, moot]; also is not of recall is see challenge sufficiency petitions v. Legislature Deukmejian Cal.3d Cal.Rptr. [194 rule initiative or 669 P.2d review [“general favoring postelection 17] [of result referendum that no serious will consequences contemplates measures] election”]; if after an validity delayed consideration of the of measure is until v. Cal.3d context Assembly Deukmejian, supra, 30 postelection [“the An a is different from a election is significantly setting. preballot-qualification act, contrast, a fait In the circulation completed accompli. qualification most, referendum are of an petitions part ongoing process portends, election”].) In this an well-established remedial light potential limitation it cannot said that there is no regarding challenges, be postelection harm in until after the election a determination of postponing validity this because type procedural challenge petition-circulation process, after election be Accord- may claim well considered moot. procedural we conclude that the court and Court of did not err ingly, trial Appeal case to the election. entertaining procedural challenge prior course, challenge Of the circumstance that a involves the type court to the election does may claim considered properly prior withholding claim in is or that it justifies establish valid question when a challenged preelection measure from the ballot. Particularly initiative signed measure that has been against challenge brought ballot, state number of voters it for the requisite important to qualify right interest in fundamental protecting people propose court that a changes constitutional through process requires caution before to remove withhold intervening exercise considerable Only measure from an imminent election. when court is confident *20 1008 ballot, and
challenge meritorious from the justifies withholding measure should a court take the dramatic of a ordering removal measure step has ostensibly (See, obtained sufficient number of signatures. qualified Farley v. (1967) Healey 67 e.g., Cal.2d 431 P.2d Cal.Rptr. [62 should order removal of an initiative measure ballot only 650] [court “on a showing that a case has been established compelling for proper Zaremberg v. Court with the initiative Superior interfering power”]; box is the Cal.App.4th ballot sword Cal.Rptr.3d [8 723] [“ ‘[t]he A will court intervene in . . . when democracy. only there are process clear, ”].) reasons to do so’ compelling case,
In our did grant of review not rest present determination upon legal should not have been or challenge question brought resolved election, but rather our with the prior upon disagreement merits lower courts’ conclusion that the defect in this case warranted procedural the initiative measure in withholding from the ballot. Because we question concluded that the did discrepancies question justify withholding ballot, from the and because time proposition constraints an precluded deliberation, adequate opportunity briefing, argument, and preparation and of an filing to the election without opinion prior unduly with interfering and distribution of the and printing ballot the administration of pamphlet election, review, we granted rendered the trial stayed judgment court, ballot, directed the of State on the place matter and authorized and officials other to submit revised statements and persons arguments ballot relating version measure had been and circulated that was ballot. signature on the Our order placed 77 to be the ballot permitted our Proposition placed preserved ability issues, election, after the address through with the opinion prepared benefit full oral briefing argument.
Ill In analyzing whether between the version legal question disparities of the initiative measure circulated for and the signature version submitted to General warranted withholding initiative measure from the ballot, we relevant begin constitutional
then consider the have judicial analogous authorities that addressed claims in cases. past
A II, (in Article section Constitution California subdivision provides (a)) that is the electors to statutes and power propose “[t]he them,” (in amendments to the Constitution and to adopt reject specifies must forth such a measure (b)) that a “set[] subdivision petition proposing is sought the Constitution” that statute amendment text of the proposed *21 II, further 10 the state Constitution be of to Article section adopted.12 of initiative (d)) the circulation (in subdivision that to prior provides the General who shall Attorney prepare “a be submitted to shall petition, copy law,” (in additionally and by a title of the measure as provided and summary “the manner the to (e)) Legislature provide subdivision authorizes explicitly certified, circulated, and measures in which shall be presented, petitions submitted to the electors.”13 turn, the in in has enacted numerous Legislature, provisions 9002, to the initiative Section process. implementing
Elections Code related II, 10, of the (d) in the directive embodied article section subdivision Constitution, “a that to of an initiative circulation provides prior petition, General draft of the measure” shall be submitted to the Attorney proposed for a title and of summary with a written of preparation request measure; summary by that further that the title and provides statute prepared . . “shall not exceed . 100 words.”14 Attorney General General, a of draft of
Section directs the a Attorney upon receipt 9004 of the to “a chief summary points petition, prepare purposes a for Attorney measure.” In deadline General’s proposed establishing title and section 9004 authorizes completion summary, implicitly to of the to to amendments Attorney measure submit General technical) 15 (either measure substantive within after days or proposed measure, initial submission of the and directs the General to Attorney provide 12 II, (a) (b) “(a) The is the provide Article section subdivisions in full: initiative adopt or power propose of the electors statutes and to the Constitution and to amendments reject them. “(b) may by Secretary of presenting petition An initiative be to the State a proposed measure the text or and is certified proposed sets forth of the statute amendment the Constitution statute, and signed by equal to have electors in number 5 the case of a percent been Constitution, of all for percent in the case an amendment to the the votes for candidates gubernatorial at the last Governor election.” n, (d) provides Article in full: “Prior to circulation of an initiative section subdivision Attorney signatures, shall General who copy or referendum be submitted to summary shall a title and of the measure law.” prepare provided II, (e) provides Legislature provide Article section full: “The shall subdivision circulated, certified, petitions presented, manner which be and measures submitted shall electors.” provides in full: to the initiative or referendum Section 9002 “Prior circulation Attorney signatures, proposed a draft of the measure shall be submitted to request summary purpose points with a that a title and of the chief General written a total 100 words. summary measure be The title and shall exceed prepared. presenting request ‘proPonents-’ “The as the persons shall known general preserve request “The until after next shall written election.” of the title and of State copy either within summary days or,
after of “the final of a if the version measure” receipt 9005) General determines section (pursuant the measure if would affect the the state adopted revenues expenditures local within 15 after the government, Attorney General’s days receipt fiscal estimate or to be Finance opinion prepared Department and the Legislative Joint Committee.15 Budget General,
Section 9007 further requires “[immediately of an initiative or referendum upon preparation petition,” to transmit “of the text of measure and to the Senate and summary” copies *22 the and authorizes the to Assembly, hearings committees hold appropriate the of the measure. Section further clear subject 9007 makes that the provision is not intended to the “to grant Legislature authority alter the measure or it prevent from on the ballot.”16 appearing 15 receipt Attorney Section in of a provides “Upon petition, 9004 full: of a draft General summary shall prepare purposes a of the chief of the measure. points proposed The summary provided shall be in the in prepared preparation manner for the of ballot titles Article 9050), 5 (commencing provisions regard filing, with section in preparation, of which to the hereby applicable summary. settlement of titles and are summaries made to the The Attorney provide summary General shall a the title and to the copy Secretary of State within measure, days 15 after of the of a receipt proposed final version initiative if a fiscal estimate or included, opinion days or receipt opinion is to be within 15 after of the fiscal or estimate
prepared by Department and the Legislative Budget pursuant Finance Joint Committee to Section 9005. during 15-day period, “If proponents proposed of the initiative measure submit amendments, technical, amendments, other than to nonsubstantive the final version of the measure, Attorney copy summary General shall provide of the title days of State after receipt within 15 amendments. measure, any proponents submitting “The initiative at the time of the draft of measure General, Attorney ($200), pay placed shall a fee of two hundred dollars which shall in a trust fund in the office of the Treasurer refunded if measure qualifies years summary for the ballot within two from the date the is furnished proponents. If qualify period, immediately the measure does not within that the fee shall be paid into the Fund General of the state.” part: “Notwithstanding Section provides Attorney in relevant Section General, measure, in a title preparing summary initiative shall determine whether the adopted expenditures substance thereof if would affect the state or revenues or of the local would, government, and if he or she that it she shall the title determines he or include in either the estimate of the amount of increase decrease in revenues or costs to the state or local government, opinion change or an as to whether or not a net state or substantial local proposed finances would result if the initiative is adopted. “The required by jointly by Department estimates as this section shall be made Committee, Legislative Budget Finance and the shall deliver Joint who them to may General so that he or she him prepared include them titles or her.” “Immediately summary provides upon Section in full: of an preparation petition, initiative copies or referendum General shall forthwith transmit Assembly. text of the measure and to the Senate and committees of appropriate initiative every proposed that with regard
Section 9008 provides must measure, and summary the title prepared (1) each across top roman boldface type or larger appear 12-point each upon are signatures appear, on which petition page (See the measure.17 the text of immediately preceding section petition meas format for forth the general also [setting § be may presented that an initiative ure].)18 petition Section 9014 provides establishes that but also statewide (rather single, than in a petition), sections and text of of the title a full and correct copy “each section shall contain in at least must be the text of the measure printed measure” and that 8-point type.19 who are autho officials that election section 9012
Finally, provides or file any shall not receive file an initiative to receive or rized “not in with this article.” conformity whole, can that there as a we conclude these Considering and statutory provisions the relevant constitutional be no but that question However, nothing in this hearings subject of the measure. may hold on the each house it prevent the measure or authority Legislature to alter shall be construed as section on the ballot.” appearing *23 17 circulation, measure, prior to “Every proposed initiative provides Section 9008 in full: type, all of larger roman boldface top petition 12-point placed shall have across following: “(a) Attorney upon page petition each summary by the General prepared The signatures appear. which are to petition “(b) by Attorney upon each section of summary The General prepared preceding the text of the measure. (b) by shall be “(c) by Attorney required subdivision summary prepared The General directly to the be submitted by following statement: ‘Initiative measure to preceded ” voters.’ measure shall be heading proposed of a initiative provides Section in full: “The substantially following form: Directly to the Voters “Initiative Measure to Be Submitted summary of the following title and Attorney prepared of California has “The General purpose points proposed chief measure: Attorney This title and “(Here summary by the General. prepared the title and set forth signatures petition whereon summary top page of each printed must also be across appear.) are to “To the Honorable of State California _ California, “We, residents of registered, voters of undersigned, qualified Constitution of California (or hereby amendments to the County City County), propose to_ Code, submit the Secretary of State to (the__ relating petition 1 and succeeding general at next rejection adoption for their same to the voters of California otherwise general election or prior held to that statewide election special election or at (full (or title and text statutory) amendments by proposed law. The constitutional provided measure) read as follows:” footnote ante. quoted page Section 9014 that the version of a require measure submitted to the General Attorney the measure’s to circulation of the proponents prior be the same petition noted, II, version of the initiative measure circulated for As article signature. section (d) subdivision of the California Constitution provides prior to circulation of an initiative “a signature, shall be copy” General, submitted to the Attorney who shall a title and prepare summary. section Additionally, that the clearly title and contemplates General prepared will be based a review of “the final upon version of a measure.”
Indeed, no party has taken the present proceeding position constitutional and applicable do not require propo- nents of an initiative measure to submit General the final version of the measure that the intend to circulate for proponents signature. Furthermore, although record establishes that the in this case proponents did submit the final version of the measure they intended to circulate for signature, that, inadvertently, it is undisputed version of the measure actually circulated by the for signature differed in a number of from the version respects submitted to the Attorney General. here is question whether the inadvertent dispute discrepancies
between the two versions of the initiative measure in this case warranted ballot, withholding measure from the the circumstance notwithstanding the initiative was signed by number of requisite eligible voters to the measure qualify for the ballot and that the version of the measure that the Secretary of State to submit to the voters was the version circulated for It signature. is to this question we now turn.
B *24 it has been Although that the issue suggested before us turns on whether the controlling decisions “strict” or “substantial” require compliance laws, with the election in some applicable such an respects approach presents post, As potentially misleading dichotomy. all of our cases explained past the utmost emphasize importance ensuring of the electoral integrity and of process interpreting constitutional and applying applicable in a manner statutory provisions that closely safeguards of that integrity In process. instances in which a from a departure statutory has requirement been found to a realistic threat pose accuracy integrity process—for example, by misleading the of an initiative potential signers petition regarding significant feature of the measure through use of a confusing title—courts have not been tolerant of such incomplete from departures and have procedural safeguards rejected claims that those relying upon by avoided confusion could have who signed petition included in petition. the measure full text of see, also have cases time, the governing as we shall At the same constitu inflexible application literal or unreasonably that recognized into account the purpose to take that fails statutory tional or requirements with the inconsistent would be issue requirement underlying particular enshrined initiative power constitutionally fundamental nature of people’s “ construction a liberal apply well-established ‘judicial policy and with the right order challenged it to this wherever power of the use resolved in favor reasonably be If doubts can annulled. improperly ” Home Builders (Associated will it.’ courts preserve of this reserve power, 41, etc., City Inc. v. Livermore Cal.Rptr. 18 Cal.3d [135 “the supra, 473]; [emphasizing Cal.2d see also Epperson, P.2d should be to the initiative relating fundamental concept provisions the electors of the exercise construed to if possible, liberally permit, Thus, courts have encountered when California most important privilege”].) not have affected the courts find could minor defects that relatively matter, past and practical as a realistic process of the electoral integrity to preclude concluded that it would be inappropriate decisions have generally the basis of such a discrepancy on a measure on voting the electorate from cases, underlying as the fundamental long purposes defect. In such fulfilled, been have statutory constitutional or requirements applicable there been “substantial compliance” decisions have concluded that has of a and that invalidation statutory constitutional or provisions applicable warranted. a vote on the measure is not petition preclusion decisions, decided within three months Court Two California Supreme has long the general judicial approach one another in highlight Assn. v. Collins (1934) 1 Teachers In been followed in this area. California Teachers Assn.)—decided in June (California P.2d Cal.2d 202 [34 134] and file an initiative petition had refused to accept of voters registrar 1934—a with the failure to comply ostensible based upon petition’s 1197b, top declared that which former Political Code section “[a]cross . and section initiative . . petition after the first every each page page title, a short gothic type in eighteen-point . . there shall be printed thereof . words, subject and the the nature of twenty not to exceed showing relied that case had added.) upon (Italics registrar it relates.” to which the title in the departed the circumstance that the short boldface type (1) it was printed 12-point in two respects: requirements statute, (2) it called for gothic type instead of the 18-point *25 words, the maximum of 20 words prescribed instead of contained statute.
In analyzing propriety registrar’s rejection petition, Assn., 202, court in Teachers 1 Cal.2d supra, began by explaining: California “The of both the requirements Constitution and the statute are intended to and do give information to the electors who are asked to the initiative sign case, that be petitions. in accomplished any given little more can be asked If than had, that a substantial with the compliance law and the Constitution be and that such compliance does no violence to reasonable construction of 204, technical requirements (1 law.” Cal.2d at added.)20 italics p.
In considering the short title’s from the departure size and required type Assn., this style, 202, court in Teachers supra, 1 Cal.2d observed California that other election-law called for provisions the use of boldface 12-point type size, and further noted that actual there ais difference “[i]n 12-point [between of but 18-point type] six-seventy-seconds an inch. one with Only very would poor eyesight be unable to read a line as printed twelve-point type as one readily printed (1 at eighteen-point 204.) Cal.2d type.” Under p. Assn, circumstances, these court Teachers concluded: “[W]e California are view there has been a substantial sufficiently with the compliance (Ibid.) statute.”
In
considering
based
objection
the number of
upon
words in the short
title, this court indicated that this objection
a more serious
“presents
question,
but one which we believe should be resolved in favor of
in the
petitioners
Assn.,
instance.”
present
(California Teachers
supra,
204—205.)
1 Cal.2d at pp.
that “the
Reasoning
omission in
‘short title’
words ‘Constitutional
Amendment’ and the
‘Submitted
phrase
Directly
Electors’ would detract
nothing from its
(id.
205),
feature”
at
descriptive
this court held that
p.
“[therefore,
regarding
inclusion of these words and the
phrase
we are of the
surplusage,
view that the mandate of the legislature has been
with,
substantially
title’,
complied
of the ‘short
which
purpose
Assn,
indicates,
As the italicized passage
Teachers
quite
decision makes it
California
clear that
compliance”
“substantial
applies
doctrine
statutory
both constitutional
that set forth procedural
requirements
relating to the initiative or referendum
hereafter,
process. As we
during
years
discuss
the more than 70
opinion
since the
in California
Assn.,
Teachers
California
uniformly
recognized
decisions
have
compliance
that the substantial
applies
doctrine
post,
(See
both to constitutional
provisions relating
to elections.
1017.)
p.
Although the
Appeal
present
Court of
expressed
uncertainty
case
some
on this
(People
point, relying
City
v.
(1931)
on an earlier
San Buenaventura
decision
this court
3])
to prevent
(Ibid.) In
addition,
further
served.”
.
.
. has been
after
first page,
and its consider
nature of this court’s approach
demonstrating
practical
action with an
eye
protecting
of its
ation of the realistic consequences
Teachers
initiative,
this court
in
fundamental
right
people’s
California
Assn,
the fact
hold in view of
inclined to so
strongly
noted: “We are more
circulated in
and is being
initiative
was prepared
present
petition
faith,
been
already
thereto have
signatures
thousands of
many
good
secured,
number of
large
within which the
required
and the time is short
(Ibid.)
can
secured.”
be
signatures
again
Boyd, supra,
three months after
In
Teachers faced a claim that an court again in 1934—this September with former Political Code was invalid for failure to comply initiative petition Teachers 1197b, that had been at issue in section same statute California Boyd, however, Assn. In by the claim was that the short title formulated at the every of the measure and set forth top page proponents Providing the first Measure after petition page—“Initiative “the nature of of Gross Act”—did not describe Adoption Receipts adequately relates,” the statute in and the to which it petition subject required question.21 Assn., Teachers Boyd
This court in noted in initially California had held that with this of said section court “substantial compliance provision (Boyd, supra, 471.) In all that 1 Cal.2d at p. code was was required.” in Boyd, was met determining whether substantial compliance requirement court, of the measure summary this after General’s considering examination amendment and its noted that “the proposed own petition, for a tax to be levied gross receipts Constitution provides upon sources, in from all certain therein sufficient money specified, exceptions and all the state maintaining government amount to meet and expenses pay state; all tax laws are existing subdivisions of the repealed[;] political new of officers are for the assessment levy set entirely provided tax; county and the of assessor and tax collector every offices Boyd 471-472.) then (1 The court the state are abolished.” Cal.2d pp. to a tax or to the in this makes no reference stated: “The short title used petition We it is clear that amendment is a revenue measure. think fact the proposed nor does it show the title the nature of the the short neither shows petition, short title which informed to which it relates. There is subject nothing decision, Boyd statutory permitted provision At the time of the the relevant page short title to be included on each compose of an initiative measure to thereafter, require amended to the title page. Shortly after the first the statute was on which present page on each prepared 61, 65.) Epperson, supra, (See Cal.2d The current signatures appear. are to 9008.) (§ provision requirement. retains the latter *27 the elector who was asked to it that the measure for the sign proposed provided tax whatever. He was informed that levy petition provided act, for the of a but no information as gross was him to adoption receipt given the character of the that ... In legislation regarding our proposed subject. this vital defect in the short title vitiates the whole and renders opinion, petition (Id. 472-473.) it at inadequate any purpose.” pp. in Boyd
Because the short title at issue did not reveal the nature adequately related, of the initiative measure or the to which the the court subject petition did concluded it not “amount to even a substantial with the compliance Code, of section of the Political and for that we requirements 1197b reason are constrained to hold that the measure set out in the said petition (Boyd, supra, is not entitled to be submitted to the of the electors state.” 1 Clark, 474-475; supra, 248, Cal.2d at also see 7 Cal.2d 252 title pp. [“A abolished, which tells that certain taxes are without prospective signer him that a telling the abolished taxes are on real portion imposed property, While we are of the that statutes definitely misleading. dealing opinion with the initiative should be construed to the exercise liberally by permit electors of this most we are also of the important privilege, opinion statutes for the electors from or passed purpose protecting confusing enforced”].) should be misleading situations Teachers Assn. theAs contrast between the results in the California Boyd decisions illustrates, in whether a from determining departure on initiative or referendum
statutory requirements imposed petitions election-law should be viewed as a circulated invalidating petition, California decisions have been most concerned with past departures (or affect of the vital integrity process by misleading withholding from) information those are signatures whose solicited.22 persons Assn, Teachers Boyd decisions, 50 after the Nearly years California Assembly court, Deukmejian, supra, 638, v. 30 Cal.3d considered a to a referendum measure circulated preelection challenge against reappor- tionment statute that had been enacted Legislature signed by Governor. After the referendum had been circulated and certified petition 22 In addition to in which petition instances courts have found an initiative or referendum title, materially misleading inadequate type invalid because it contained a short of defect most often has been found fatal is the failure of an initiative or referendum statutory comply requirement setting with the forth in sufficient detail the text of the legislative against brought act measure which referendum is registered intelligently sign “so that voters can evaluate whether to the initiative and to 93, see, (Mervyn’s Reyes (1998) 148]; v. Cal.App.4th Cal.Rptr.2d avoid confusion.” 69 99 [81 e.g., Myers Stringham Billig Voges (1925) 448]; (1990) v. v. Cal. 675-676 P. [235 Creighton Reviczky 91]; Cal.App.3d Cal.Rptr. Cal.App.3d v. [273 834].) Cal.Rptr. 1232 [217 ballot, signatures qualify number obtained a sufficient having variety based on brought was challenge judicial
a preelection the most serious analyzing After in the referendum petitions. defects circum- of the unusual concluding, light defects at issue in that case there, the referendum would not withhold that the court stances present heart” very it went “to defect even though the basis of that the ballot on (30 Cal.3d at issue statutory requirement of the purpose particular attention to a v. turned its Assembly Deukmejian 648),23 this court p. sufficiency” “the technical to what it described as of other challenges number the referendum petitions. *28 determina that governs forth the standard setting We began by mea a referendum or initiative should invalidate tion whether such defects sure, in referen that technical deficiencies “This court has stressed observing: in if are they will not invalidate petitions dum and initiative petitions and constitutional statutory requirements. ‘substantial compliance’ 202, Collins[, P.2d supra,] Teachers Assn. v. 1 Cal.2d (California [34 is valid despite in whether determining petition concern paramount 134].) A requirement the technical purpose is whether alleged defect both the ‘The by petition. requirements defective form frustrated information to are intended to and do give Constitution and the statute in any If that be accomplished who are the . . . sign electors asked petitions. case, with the little more can be asked than that substantial compliance given had, does no violence and that such compliance law and Constitution be (Ibid.)” of the law.’ of the technical a reasonable construction requirement 652-653, added.)24 italics supra, v. 30 Cal.3d at (Assembly Deukmejian, pp. Assembly Deukmejian, supra, 30 v. petition The flaw in the referendum in most serious 638, failed to ask petition of the circulated Cal.3d from the circumstance that the sections arose required applicable signing his or her “residence address” as provide each voter to 3516, 9020), registered “your to vote.” (former but asked for address statute now instead § § being a technical Assembly Deukmejian recognized that from mere court in v. “[f]ar This subdivi shortcoming, comply requirements with the section parties’ real failure (c), ensure that very enable the clerk to goes purpose—to to the heart of that section’s sion being from prevents purpose petitions signed have been those entitled to do so—and Nonetheless, 648.) it would (30 that case concluded that p. Cal.3d at the court in effectuated.” defect, as numerous the ballot the basis of that inasmuch not withhold the referendum from challenged, because a had been and also petitions had used the same format never past provided circulators had petition handbook for former version of the of State’s construing” “liberally Relying judicial policy of misleading regard. upon advice this “[ujnder the held that relating power, and referendum this court to the initiative deemed to render the the defect would not be unique circumstances of this case” unusual invalid, comply to . . . comparable the future a “failure petition but warned that in referendum (Id. 652.) per p. se.” statutory petition] will render invalid requirement] this [a [with Assembly Deukmejian, supra, 30 Cal.3d v. opinion, in its this court in passage At another that is at least compliance standard of the substantial repeated a different formulation outside the context Quoting an earlier decision rendered misleading. potentially defects, We then went on to discuss each of the alleged concluding none of the deficiencies interfered with purpose underlying relevant One of the statutory provision. deficiencies in the referendum similar, v. petition Assembly Deukmejian was somewhat although not identical, to the defect at issue in the case. The present statute applicable a referendum required set forth “a full and correct of the petition title copy and text” of the legislative measure which the referendum against was (Former 9014.) brought. now referendum at issue in § § petition Assembly v. Deukmejian included the text purported challenged statute, but forth the reapportionment setting text of that legislative measure the contained errors in the petition listing of the census redistricting numbers, tract with the result that the text did not appended the text of the replicate statute that was the reapportionment subject variance, referendum we petition. Despite rejected challenge referendum rather summarily, stating errors were simply “[t]he so minor as to no pose danger misleading signers petitions. therefore, do affect They, (30 validity Cal.3d at petitions.” 653.)25 p. *29 “ elections, we compliance stated that . . . compliance respect ‘[substantial means actual in 649, every the objective substance essential to reasonable p. of the statute.’ at [Citation.]” {Id. italics.) original unobjectionable This long formulation is so as it is understood to mean that objective each purpose of a statute must be satisfy achieved in order to the substantial standard, compliance but language properly cannot require understood to “actual seen, compliance” every specific statutory with requirement. As we have in Teachers California
Assn., 202, supra, 1 Cal.2d compliance despite this court found substantial the circumstance that the petition question short title on the in 18-point gothic was not set forth in the type specifically required applicable the statute. 25 638, Assembly Deukmejian, supra, This court in v. 30 Cal.3d also found that two additional petition withholding flaws referendum did not warrant the measure from the First, although ballot. proponents’ preprinted (utilizing the court found that the use of dates a “ dates) range signed by wide of on the petition declarations circulators to show dates ‘[t]he ” obtained,’ signatures between petition question] which all the in section were rather than [on provision specific the of filled petition reflecting dates in individual circulators the dates obtained, signatures within which the particular petition actually on the section impeded were ability the of local election officials to signed determine whether those individuals who section, petition registered they signed section were voters at the petition although time and the court petition stated that circulators in the future personally should enter the actual dates signatures between which all petition signed, on the section were the court concluded showing general that—because “no has been made provided that the more information prevented carrying invalidating clerks from out function”—this flaw did not warrant [their] (30 Second, 653.) petition. rejected the referendum Cal.3d at p. the court the claim that the use type of small pages petition interleaved in the circulated made the reapportion text of the 652), “virtually concluding: ment statute unreadable” at p. petitions fully were {id. “[T]he readable, despite type. the small size of the The color-coded packets sufficiently referenda were labeled and requirements compliance differentiated to meet the of the Neither substantial test. signer’s ability being of these defects frustrated understand what he or she was asked to (Id. 653-654.) sign. Accordingly, petitions pp. neither of them renders the invalid.”
1019 minor relatively Over numerous years, departures and referen to initiative applicable constitutional statutory requirements test, so satisfy compliance have been found to substantial dum measures in as question, the court was able to conclude departure as long matter, did not undermine or frustrate basic realistic and practical of the integrity ensuring served by statutory requirements purposes or referendum initiative process.26 City Limited Two v. Santee MHC Recently, Financing Partnership (MHC Financing),
(2005) 125 Cal.App.4th Cal.Rptr.3d [23 622] doctrine in had occasion to the substantial compliance Court Appeal apply case, title in which a a factual setting quite present comparable the basis of of a proposed that was on one version summary prepared used on a circulated initiative petition initiative measure was inadvertently Because that set forth different version of initiative measure. here, that case to we issue addressed in the issue similarity presented the MHC in some detail. discuss decision Financing of a local Financing The initiative measure in MHC proposed adoption mobilehome rent ordinance. The of the control Court, 111, See, supra, example, Zaremberg Superior Cal.App.4th 119-120 v. (holding petition substantially complied despite referendum Elections Code print page petition required by failure to on each section proponents’ short title text pages missing pages where from which title was were continuation short question and short on the appeared page statute title both first on signature page); Cal.App.4th Alliance a Better Downtown Millbrae v. Wade (noting fully did not Cal.Rptr.2d footnote that even if the initiative [133 249] comply summary reprinted with section were 9203 when the title the measure back, front, sheet, signature compliance there but not each was substantial with the signer paper statute “because the statement on one side of sheet of informs ‘ initiative, thereby providing every the content of the “the substance essential to ’ *30 514, ”); (2002) objective People 520 Cal.App.4th reasonable statute” v. Scott [119 98 (finding provisions Code Cal.Rptr.2d compliance applicable substantial Elections 797] signature despite differences between the version of initiative measure circulated for and the voters, by where appeared pamphlet approved version of measure that in ballot and was there showing “that in the the initiative were material was no of the differences text of ability the the voters to make an purported deficiencies or such defects ‘affected (1990) ”); Hayward Superior 218 Planning Cal.App.3d choice’ Assn. v. Court informed Area 53, Cal.Rptr. (finding compliance despite petition’s substantial referendum failure 59 [266 745] top generic language Against an Ordinance page to include across the each the “Referendum (now 9238), petition where by City by Council” former section 4052 required § Passed helpful as the words” contained a statement that the court found was as “informative 90, statute). (But City Cal.App.3d Carson 214 99-100 specified in the cf. Ibarra v. of local [rejecting compliance proponents of substantial where Cal.Rptr. claim [262 485] petition a notice of to circulate the three published, post, initiative measure but did not intent circulating days though purpose even there was no indication that prior petition, 4003, (former 9205) by underlying adequately now was not achieved applicable § statute § by petition timely publication of the notice of intent to circulate and the inclusion attorney].) by city summary prepared an accurate title and 1020 18,
initially submitted a version of the measure to the on March city attorney (the version), 1998 March 18 of a ballot title and requesting preparation summary; response, city ballot title and attorney prepared summary 2, them the 1998, and to the provided clerk. On proponents city April submitted to the a modified proponents city attorney version of the initial (the version) measure 2 but failed to April ballot title and expressly request and the did summary, city not a title and attorney for the prepare summary Thereafter, 2 version. April included the 2 version of the April measure on the that was circulated for the ballot title signature, using that had been summary on the prepared by city attorney basis of the March 18 version. The circulated obtained the number of requisite council, and the signatures which was city under the law required governing either to submit the ordinance to the voters or to adopt ordinance, so, however, opted ordinance. In adopt doing city council inadvertently March 18 version. After a adopted lawsuit was filed ordinance, challenging constitutionality council’s mistake city discovered, council, mistake, was and the to correct city its enacted a new ordinance the text of the containing version. April
In MHC the trial Financing, court held the ordinance city adopted invalid on a variety grounds, violation of the Elections including Code ballot title and relating for local required summary initiative reversed, but the petitions,27 Court of on this Appeal concluding point the trial court had erred in determining ordinance was invalid adopted “on the that a ballot ground title and summary was for the prepared April 2 initiative.” (MHC Financing, 1388.) supra, Cal.App.4th conclusion, In its Justice reaching Aaron’s for the opinion court MHC “When, here, Financing its began analysis by there explaining: is no clerk, about the format of an dispute initiative petition presented city and the issue on is whether the appeal with the petition substantially complies ballot title and (b), section subdivision requirements we review the (MHC matter de novo.” Financing, supra, Cal.App.4th 1388-1389, omitted.) fn. pp. After the relevant citing from our passage decision in Assembly v. 30 Cal.3d Deukmejian, supra, regarding crucial importance considering of the relevant purpose requirement determining whether there has been substantial compliance, court in MHC continued: “The Financing served the ballot title purposes (§ Code provisions applicable municipal Elections et seq.) measures *31 largely parallel the applicable statutes that are to provides statewide initiatives. Section 9203 copy for submission of “a of the proposed measure” to the local election official with a request for a summary, ballot title and and directs the election official to transmit the material to the city attorney preparation summary. of a title and summary prepared, After the title and are measure, they provided are proponent of the and the proponent required print to the summary title and top page petition signatures across the of each of the appear. on which are to
1021 9003, (b), (1) are: to reduce of section subdivision and summary requirements to allow (2) the signing the risk that voters were misled when petition; the had neutral the explanation verification that signers (3) signatures to when and to signed; prevent ordinance available them they than that for which from a different measure being submitted in support (MHC 1389.) 125 at Financing, supra, were Cal.App.4th p. they procured.” ex- Financing, in MHC 125 then supra, The court Cal.App.4th summary of the ballot title and “Based on our own comparison plained: 2 initiative 2 with the sections of April circulated with April petition and are that the title initiative addressed we satisfied summary, 2 and reflect substance of the initiative summary April adequately the title and summary therefore did not frustrate the requirement purposes (Id. Financing the court in MHC 1389.) at Although section 9203.” p. that the the text the March 18 version differences between acknowledged nature text of the 2 version were substantive in and April “ ” (ibid..), 2 18 version ‘alteration’ of the March version April represented “do the court at the same time observed that the differences not go initiative, heart the circulated and thus do not render ballot title as to summary for the uncirculated March 18 initiative misleading prepared (Id. MHC 1389-1390.) 2 circulated initiative.” at in April Although pp. Financing some differences in the two versions involved measure actually attorney’s initiative that were mentioned in city Court summary examining on the after appeared petition, Appeal, found that the minor differences “did not create language summary, (Id. 1390.) a risk that voters initiative were misled.” at signing petition p. The court in MHC Financing concluded: the initiative “[W]hile technically did not did City Attorney with section because 9203 comply initiative, a ballot title and for the prepare April summary specifically title petition substantially complied with section 9203 because the ballot it that circulated with reflected substance accurately did not create a risk voters accompanying April signing The ballot would misled about the substance of the initiative. did not infringe technical with section summary’s noncompliance (MHC Financing, supra, electors’ constitutional of initiative.” right italics.) Cal.App.4th p. original acknowl- Court of case majority opinion Appeal present held
edged the decision MHC Financing, supra, but Cal.App.4th case because distinguishable earlier decision was the present than had the ordinance rather city adopt that matter council chosen authority measure the voters council retained the city submit the defects in the initiative a measure adopt notwithstanding any potential such *32 1022 Financing MHC (2)
circulation and the in had submitted process, (but the had or version not obtained a April city attorney requested decision MHC version). title and for that Court of in summary Appeal Financing, however, did those circumstances or in rely justifications upon statute, the violation election instead analyzing asserted of the but clearly held that there was substantial with the Elections Code compliance applicable the ballot title provisions because and that circulated with actually the initiative reflected the version accurately substance of the of the initiative measure that was the included in Unlike Court of petition. case, in find the Appeal majority present we and conclusion in reasoning MHC Financing directly point.28 ante), (see
As described the outset of this December p. opinion 6 version of the initiative measure submitted to the General differed in a number of from the December version that circulated for respects (1) signature, including most a substantial significantly revision (2) and a wording “Findings Declarations Purpose,” one-day reduction in the time in which leaders were to make their legislative nominations and exercise in final list of peremptory challenges creating lot, were judges which masters to be chosen special by that, statement explicit regard to the redistricting process, and referendum was to be in the in only used manner power specified initiative measure.29 Evaluating differences two significance versions in light legal standard established and in numerous applied ante, California decisions reviewed we conclude prior that although defect, variance in the two versions constituted constitutional and statutory the inadvertent differences at issue here did not or mislead or otherwise defeat undermine the underlying fundamental purposes relevant constitutional and was thus there substantial statutory provisions with those we conclude compliance provisions. Accordingly, that discrep- ancies did not justify withholding initiative measure from the require ballot. concurring Justice dissenting opinion suggests upon Kennard’s reliance our Financing in MHC decision misplaced question is because case addressed the issue concurring dissenting the context opinion postelection, of what characterizes ante, (See Kennard, J., 1037-1038.) preelection, challenge. opn. by pp. rather than conc. & dis. ante, however, Financing from MHC As passages demonstrated set forth the Court of Financing decision in MHC Appeal rely upon analyzing did not that circumstance claim, resolving reasoning directly applicable but rather upon relevant relied Thus, concurring dissenting ground resolution of the issue before us. opinion’s Financing MHC distinguishing convincing is no than the relied upon more distinctions Appeal. Court of ante, appendix As noted the differences in the are set forth in in an two versions full opinion. *33 contrary of to the Court Appeal’s court urging
In this uphold CFFR, case, conced the General and while in this both Attorney conclusion an the of differences between version that or clerical ing typographical circu and the to the General version Attorney submitted initiative measure from the circulated version withholding would not justify lated signature this ballot, the two versions in the the differences between that emphasize but clerical or stylistic characterized as simply case cannot properly that the agree as well. We discrepancies included substantive differences 77 included some substantive between the two versions Proposition demonstrates, differences, not the it does but as decision MHC Financing any follow the difference or difference any existence of substantive results in the frustration meaning necessarily between such versions statutory the purposes underlying applicable requirements. Attorney and the pertaining constitutional (Cal. a ballot illustrate this summary
General’s title and preparation point. Const., n, 10, Code, 9002, 9004.) decisions (d); art. Elec. Past subd. §§ § establish that the underlying requirement principal purpose it to Attorney of an initiative measure submit a proponents copy accurate General is to that official to an circulation enable prior prepare and objective summary title and that must be included prominently are circulated will whose and that voters provide signatures petition and sought objective description general subject with accurate Joint (See, Valley matter of the initiative and its main Amador e.g., points. 208, Union Sch. Dist. State Bd. Cal.3d High v. Equalization 61, 1281]; 66-71.) 12 Cal.2d supra, 583 P.2d Cal.Rptr. Epperson, [149 case, In the December version submitted the present title and initiative to the General for of a Attorney preparation a title the basis summary General and summary, Attorney prepared version, title in the circulated summary ballot was included Thus, with text of the December version. petition along (inadvertently) them text of voters had before the full registered signed who the December 3 version—the version that the State well as the title on the November election ballot—as place General on basis of Attorney that was summary prepared December 6 version. noted, was that court
As when matter before the Court Appeal, using directed a title and summary General prepare the measure that was circulated with December 3 version of petition, General, review, for the after title and summary prepared differ in did not acknowledged December 3 version that the Attorney the title and that had been summary material respect prepared circumstances, the December 6 version. Under these it is clear that two discrepancies versions of the measures—albeit some involving substantive than details rather clerical errors—did merely adversely affect the accuracy or ballot title and completeness Attorney General’s version of measure that was circulated with regard and thus did not mislead or otherwise frustrate the the constitutional purpose underlying statutory provisions relating of a title and preparation General’s ballot summary. *34 conclusion, In its the Court did not reaching Appeal majority suggest that the in the two versions of the measure frustrated the discrepancies the purposes served for the by statutory provisions calling Attorney General’s Instead, of a title preparation ballot the Court of summary. Appeal observed that the constitutional and the statutory that version of requirement an initiative that measure is circulated for be same signature the version as that submitted to the serves additional General Attorney the purposes beyond of an accurate and title and be preparation to included in objective summary noted, the initiative As the Court of the petition. Appeal Elections applicable Code the provisions General to a title and require Attorney only prepare but the summary also to version of the that provide measure has copy been (§ submitted (1) 9004), (2) to of State the by (§ of Finance and the Joint Department Legislative 9005), Committee Budget (§ 9007), each whom Legislature will presumably rely upon version of the measure forwarded by Attorney General in its performing own or authorized functions. The Court of concluded that the required Appeal existence of different versions of the measure frustrated purposes which, these additional the Court underlying statutory in provisions are intended to ensure that all Appeal’s terminology, the relevant officials are “on the same page.”30 majority additionally Appeal Court of stated that of the measure version submitted Attorney to the General of the for a text initiative” number of “fix[es] purposes, namely by (§ 9091), other “proofreading Legislative . . [of measure] Counsel . 9041, 9042, 9044, (§§ the preparation arguments against for and qualified the measure if 9064), preparation analysis by Legislative Analyst and the of an of the measure for the ballot 9091, 9086, (§§ 9087).” pamphlet Although nothing in applicable explicitly statutes provides that the of an initiative submitted Attorney version measure to the General is intended case, to “fix the purposes—in text” of the measure for these for example, additional Secretary of Legislative State sent the December 3 version of the measure to the Counsel for (see ante)—we proofreading acknowledge many fn. p. in instances these officials may rely and other upon Attorney individuals the text measure submitted General Nonetheless, performing arguments. in drafting their functions ballot as is the case with
regard to the public required by provide officials to whom the statute to version, copy of the submitted the existence of differences between the text of an initiative signature measure submitted text of the General and the measure circulated for serve statutory we provisions
Although agree applicable do not agree we the Court of by Appeal, additional noted purposes or invari necessarily an initiative measure versions of existence different by Just as the served of these provisions. ably purpose frustrates the purposes title an accurate and objective to obligation General’s prepare when the existence of different versions by is not defeated affected the content materially would not have differences versions the additional underlying the title and so are the summary, purposes not frustrated when content the Court of by relied upon Appeal are be various public of the statements or analyses prepared materially would not be affected officials and other individuals measure, are discovered different versions of the or when the differences those officials and other affected individuals sufficient time to permit (or directed legislative hearings) to hold analyses accurate reports prepare to the voters. measure that is to submitted die version case, two versions were brought In this because the differences measure) (and to the attention of the relevant officials opponents *35 and the were sent to the printer, before ballot ballot materials pamphlet because, versions, the there in of the minor differences in two light relatively the to make any was time for officials adequate opponents in to the that was to voted revisions deemed reflect version necessary upon election, or the we conclude that the did not frustrate under- discrepancies the so as make for mine served these to it appropriate purposes the a to as just court withhold the measure the ballot. Accordingly, submission the of the measure to the General Attorney December version ballot title and summary constituted substantial with the compliance provi- did title sions because it not frustrate the of the statutorily specified purpose we conclude there was substantial summary compliance procedure, to as well.31 these additional respect statutory provisions the Aside from the Court statutory applicable requirements purposes, the that between version of Appeal suggested discrepancies measure submitted to the General and the version circulated for Attorney warranted the measure from the ballot because signature withholding individuals, necessarily invariably product not or frustrate or undermine the work of such does and, hereafter, present we that in the case the differences reasons discussed conclude prejudicial did not have a effect. Attorney note General and We that submission of initiative measure purposes under other provision of a title and serve a number additional General’s including identifying individuals who are to be considered provisions, Elections Code 342, 9002, 9032, 9067) (see the measure for various “proponents” purposes §§ 336). (§ signatures establishing beginning in must be collected period date which well, respect statutory purposes these the differences two versions With to had initiative measure here issue no adverse effect. General, so, to although statutorily do required posted site, version had him that been submitted to on the Web Attorney General’s and some voters who initiative have done so on signed petition may version of measure included in the assumption initiative petition was the same version as that on the Web Attorney General’s site. posted a Although as theoretical matter it is signed some who possible persons read had the text of the measure that on petition previously was posted site, no Attorney General’s Web there is evidence in the record to suggest as a matter realistic either a number of significant signers directly obtained information about initiative indirectly measure from the version site, or, event, of the measure General’s Web in posted any the minor differences in the two versions would have affected the any decision or not to person sign sign to take other action related As is demonstrated petition.32 past ante, California decisions reviewed in context courts have taken a realistic and practical view consequence relatively minor statutory lapses, refusing, withhold measure from the ballot because example, of the theoretical that a possibility smaller size a title have might type affected when the signers actual size utilized potential type was not unduly Assn., small and was Teachers (California supra, readable 1 Cal.2d clearly 202, 204), or to invalidate a referendum because of the theoretical that minor errors the text of the measure attached possibility to the petition might have been read and relied some signed who upon by persons v. petition. (Assembly Deukmejian, supra, 653.) 30 Cal.3d At argument, oral the Attorney strenuously the court urged any difference rule under which adopt “bright-line” between the meaning *36 version of an initiative measure submitted the General and the Attorney version circulated for the would invalidate circulated signature petition, without to the or the regard significance insignificance of particular discrep- in or to is ancy meaning whether there that the any realistic possibility argument may In response persons signed petition some who the initiative have site, by Attorney been misled text petition posted the of the initiative on the Web the General’s 8,000 proponents of the measure asserted that because there were fewer than visits to the Attorney qualified General’s Web site to view the measure and the of because number 8,000, signatures petition required by many on the exceeded the more the number than version posted validity agree on the Web site have could not affected the of the certification. We the Appeal Court of the site Attorney number visits General’s Web cannot determinative, properly be persons viewed because or entities read the site version who Web may have their and spoken publicly formulated views about the measure on the basis of that version, however, many potentially affecting persons. Again, more the conclusion the Court Appeal solely drew from this circumstance possibility rests on the theoretical case, widespread absolutely confusion. In this there is no site evidence Web version confusion, publicity led to the widespread or or that minor differences between the two any any potential realistically versions affected the view of who visited the Web person site or signer. any actions of or in affected actually
difference differences question Attorney The General argued or the of the electoral person integrity process. requiring propo- and statutory provisions that because constitutional same petition an in circulated nents of initiative measure include are General Attorney as that submitted to version of initiative measure with, any in should meaning not difficult to understand or comply departure that his Attorney acknowledged not be tolerated. The General in there is difference any of a if standard invalidation (requiring petition a measure) court withhold in would meaning compel any aspect needed a and urgently “good an imminent election universally popular mil- by that had been signed constitutional initiative measure government” voters, if between the version submitted lions of even difference only version was an inadvert- signature General circulated for (which definition by of an numeral ent mistake in the printing insignificant have in that could not always change meaning) would result a possibly voter, any other signer, person. affected decision to effectuate that this “harsh” result argued concededly required The concur- constitutional electoral applicable provisions. Kennard embraces dissenting Justice ring opinion General’s argument. however, seen, involving
As have decisions of this court we past back more similar to initiative or referendum challenges petitions—reaching advanced the Attorney than 70 refute the years—uniformly position concurring dissenting General and endorsed Justice Kennard’s opin mandating ion. Rather than rule invalidation “bright-line” adopting an initiative election-related statute when petition violating applicable the title on the of each was set forth in top page petition 12-point boldface rather than or contained 24 rather than 20 gothic type 18-point type Assn., Teachers (see 204-205), supra, words Cal.2d California aside the text of the statute set forth in of a referendum when setting (see track the actual issue legislation did precisely 638, 653), the Assembly Deukmejian, supra, governing v. 30 Cal.3d Califor rule nia decisions a “substantial in this consistently compliance” have applied context, whether defect realistically evaluating particular question election each Although frustrates purposes applicable requirement. and similar of the constitutional and at issue these statutory requirements *37 on not difficult California cases was clear its face and ostensibly past that with, recognize all of the decisions in this area implicitly comply inadvertent, it error be avoided human cannot good-faith always of the tens be the fundamental constitutional interests would inconsistent with an initiative or who have signed or hundreds of thousands persons (and an prohibit to invalidate qualified petition referendum otherwise petition or of the voters for their approval the matter from all being presented 1028 it is that the when technical defect in as a
disapproval) apparent question, matter, realistic did not affect the adversely integrity electoral process or frustrate the or underlying relevant constitutional purposes statutory circumstances, Under such requirements. decisions establish controlling an otherwise or precluding referendum measure from qualified ballot is not being placed remedy. appropriate Furthermore, there cases also demonstrate that is no merit to the claim past rule General must any-change-in-meaning (or in this context because courts are adopted determining incapable cannot be to determine) trusted whether the differences between objectively the version aof measure submitted to the General and the version circulated for signature signers realistic of a pose danger misleading or other petition any for reason threaten the of the electoral integrity process. decisions, In California many courts have the titles and prior compared summaries of initiative with the substantive petitions provisions initiative measures determine themselves to whether titles and summaries are (see, accurate or potentially misleading Amador Union e.g., ValleyJoint 208, 243; Sch. v. State High Dist. Bd. 22 Equalization, supra, Cal.3d 61, 65-71; Clark, 248, 249-252; Epperson, Cal.2d supra, Cal.2d supra, 468, 470-475; Boyd, 1 Cal.2d supra, MHC Financing, supra, 125 Cal.App.4th 1372, 1390-1391; Court, Zaremberg Superior supra, v. 115 Cal.App.4th 116-118), and also have whether considered differences or omissions text of measures to a or included in a ballot or appended do pamphlet do not a realistic who pose danger of those or misleading signed (See, voted for the measure. v. 30 Cal.3d e.g., Assembly Deukmejian, supra, 638, 653; Scott, 514, 519-520; v. v. supra, Billig People Cal.App.4th Voges, 962, 966-968; Brooks, supra, Cal.App.3d Chase v. supra, 187 Cal.App.3d 657, 664.) authorities, light In these numerous there is no reasonable basis that courts cannot or should continue to maintaining evaluate type defect issue here standard has been statutory pursuant legal applied consistently California initiative and referendum cases for so past many years. sum,
In because we conclude that the between the discrepancies version of the initiative measure submitted and the version did circulated not mislead the otherwise signature frustrate or undermine constitu underlying purposes applicable tional or threaten the the electoral integrity process, we find there substantial was with these For this compliance requirements. reason, we conclude that was submitted voters. Proposition properly conclusion,
In we that a crucial factor in our reaching emphasize measure, decision is that how the demonstrating *38 occurred, the was that clearly discrepancy established in this case discrepancy that the inadvertent, propo- no suggesting that evidence was presented the different from the measure intentionally a version of nents circulated title and of a General for to the Attorney preparation version submitted come into would different considerations to circulation. Very summary prior the to manipulate a an initiative measure attempted if play proponent from the a version different circulating by intentionally initiative process case, a General. In such protection to the Attorney version submitted the for withholding well call might very of the electoral process the integrity relatively the differences as the even if a court viewed measure from ballot minor, the Attorney intent to circumvent both because the proponents’ the differences as viewed suggest General’s review would proponents in to a well order necessary such sanction be might and because significant, case, the indi- In the evidence deter such intentional misconduct. present the circulation of found—that cates—and the trial court expressly proponents’ inadvertent,33 a different version was our misunderstanding, to we Finally, any emphasize avoid case does not mean of an initiative in holding this proponents circulate, a version of the measure inadvertently, even measure properly may General. As discussed that differs from the version submitted the Attorney ante), (see statutory constitutional provi above applicable p. to the of an initiative measure submit require sions proponents a final copy to circulation of prior circulate, they require version the initiative measure that intend that same version with their signature petition. to circulate proponents ante, we concluded that for the reasons discussed have Although, case did not frustrate differences in two versions present constitutional and provisions underlying applicable purposes having suggest that should be viewed opponents Proposition proponents they discrepancies in process in this case because failed to disclose the manipulate acted Although Secretary State the measure for the ballot. the two versions until after the certified immediately upon the discrepancy should have disclosed proponents we believe that Superior (see 608-609 Stevens v. Court discovering Cal.App.3d generally it fact]), [discussing we do not believe Cal.Rptr. failure to disclose a material [225 624] intentionally circulating can regard equated with proponents’ properly failure know is from the version submitted signature proponents version different Here, clearly or circumvent there was no intent to subvert General. General. requiring copy of a initiative measure submission Further, discrepancy promptly, more there although the should have disclosed Even if the resolution of this matter. delay no reason to conclude that affected the Secretary of the measure for preceded the of State’s certification proponents’ disclosure had judicial certify the absent had declined to matter the ballot and even if State issue, (see MHC compliance light of de novo conclusion the substantial our determination of 1372, 1389) Financing, compliance was supra, Cal.App.4th that there substantial statutes, event. been on the ballot placed the measure would have applicable *39 ballot, did thus not justify from the withholding proposition similar conclusion not be may warranted other circumstances. As cases past establish, when of an initiative measure proponents submit to the properly Attorney General the same version the measure that is circulated for the title signature, and by summary prepared are presumed (see, accurate and sufficient e.g., Valley Amador Joint Union High Sch. Dist. 243; v. State Bd. Equalization, 22 Cal.3d v. supra, Vandeleur (1938) Jordan 455]; Cal.2d P.2d Epperson, 12 Cal.2d supra, [82 66), but no similar when the presumption version submitted to the applies Attorney General from differs the version circulated for Accord- signature. of initiative ingly, proponents would be well advised all petitions to take steps to necessary ensure that the that occurred in the case does not mishap present recur in the future.
IV above, For the reasons discussed of the Court of judgment Appeal, the trial court’s upholding decision 77 from withholding Proposition 8, 2005, ballot, November election is reversed. Because 77 was Proposition 8, 2005, election, defeated the November to the underlying challenge voters, submission of 77 to the Proposition in this writ that are proceeding moot. opposing challenge, we
Although conclusion reach—that the error committed 77 did proponents Proposition the action of the justify lower courts in withholding Proposition 77 the election ballot—renders the proponents the prevailing because the party, proponents’ negligence petition- circulation created the process that led to this problem controversy resolution, need for its judicial we direct each bear its own costs in party (Cal. Court, this and the underlying 29.7.) Rules rule proceedings. reversed, judgment the Court of is matter Appeal remanded to that court with directions to dismiss this as moot. proceeding
Baxter, Chin, J., J., Aldrich, J.,* concurred. KENNARD, J., Concurring I concurin the Dissenting. majority’s (1) that: holdings Preelection of a judicial review to an initiative challenge measure is when the is based on a appropriate challenge claim measure does not to comply procedural requirements necessary qualify District, Three, *Associate Justice of the of Appeal, Appellate Court Second Division VI, assigned by pursuant the Chief Justice article section of the California Constitution. ballot; and statutes (2) require our state Constitution the matter for its state initiative submitted the version of version circulated General be same ballot; and the initiative for placement sufficient signatures qualify challenges to procedural compliance applies the doctrine of substantial *40 measures. initiative here the dissent, however, that proponents from the conclusion majority’s
I with the constitutional complied of Proposition substantially the the initiative provided that a copy proposed requirements the for signa- is circulated to public the General before Attorney proposal I that the conclude the court and Court of Appeal, tures. Like trial and statutory provisions, party with the constitutional substantially comply General a Attorney to circulate a initiative must give wishing proposed the version the initiative that differ in meaning does not copy of these is for The signatures. purpose circulated to officials, well as the offices and as Legislature, government furnish the electorate, can make informed decisions. they with accurate information so When, here, that differ versions competing as initiative has two proposed is under- of the constitutional and goal statutory provisions in meaning, mined and the of the electoral integrity process compromised.
I. 77, an initiative measure Petitioners were the of Proposition proponents Senate, California’s changing process redistricting proposed districts. At the Novem- and Board of Assembly, congressional, Equalization 8, 2005, election, the initiative. The question ber the voters rejected special initiative, here, however, but whether does not concern defeat of been to the voters at all. should have proposition presented 2004, 7, the initiative On December started proponents process initiative to the General a version of the submitting Attorney proposed II, 10, Const., version). (Cal. (the art. on December 6 December 6 § prepared Code, (d); 9002.) Knight, Attorney That same Tricia day, subd. Elec. § coordinator, substantive any General’s initiative notified proponents within 15 have to be submitted amendments to the initiative would proposed submission, is, 2004. The on or before December of the initial days did not amendments. proponents present 3, 2005, Secretary sent to the
On February Knight proponents, State, title and Assembly, summary prepared Clerk of the and to the Chief 6 version of proposed as well the December General. had provided initiative that proponents then arranged for of the initiative proponents printing petition circulation to the electorate to to gather try enough signatures to qualify measure for the ballot. The contained the printed petition Attorney General’s initiative, title and but the version proposed of the proposed initiative in the was not the same as the December 6 version that the Instead, had submitted to the proponents General. initiative,
contained an earlier draft a draft dated December proposed (the version). December 3 In mid-May learned that had circulated to the they not, electorate version of the wrong initiative. did how- They ever, 13, 2005, disclose that to the of State until June after he had certified that the for the qualified ballot so notified the Legislature’s and Senate. Assembly *41 8, 2005,
On the July General Attorney brought this action for a writ of mandate to either of the prohibit version initiative from being proposed on the ballot. The trial placed court found that the error was the result of an inadvertent The mistake. court the of the acknowledged applicability legal doctrine of substantial compliance limited situations the initiative involving determined, however, It the had process. not substantially with the constitutional and a complied for requirements qualifying measure for the ballot. The differences between the initiative proposed submitted to the General and the version Attorney submitted to the the public, said, court trial the “go substantive terms of measure.” decision, aIn two-to-one the Court of trial affirmed the court’s Appeal 12, 2005, On August a judgment. of this court the majority granted propo- review, court, nents’ the of the stayed judgment trial and directed State of to Secretary (the the December of the initiative place version version included in the on the petition signed by public) ballot for the 8, November The 2005 election. voters rejected initiative.
II. The California Constitution reserves to the of initiative people powers Const., IV, (Cal. and 1.) referendum. art. “The initiative is of the § power to and electors statutes amendments to the propose Constitution and to adopt Const., II, 8, (Cal. them.” (a).) art. subd. relevance reject particular Of § here is this in the state to Constitution: “Prior circulation of an provision initiative or referendum a signatures, shall be to copy submitted General who shall and Attorney title of the measure as prepare summary Const., II, (Cal. 10, (d), added.) law.” art. subd. provided by italics The § further Constitution directs to manner in which Legislature “provide certified, submitted circulated, and measures and be presented, shall petitions II, has Const., (e).) The Legislature subd. art. (Cal. § to the electors.” Code, (Elec. these provisions. number of statutes implementing enacted a et seq.) § be Attorney statutory requirement
The constitutional and of providing the objective initiative serves of a given copy proposed the Legislature, initiative to consistent, about information reliable on offices, want to comment to those who may certain government General is Attorney required Accordingly, and to the public. proposal, Code, (Elec. submitted of the document a title summary law to prepare Finance Joint 9004); give copies Department §§ (id., 9005); cost § estimates Committee for preparation Legislative Budget summary title and General’s Attorney send copies Senate, State, the the Secretary initiative to the proponents, 9007). on furnished by (id., Based copy the Assembly §§ General, hold may the Legislature either or both houses of Attorney (Id., 9007.) General’s transmission The measure. hearings § initiative of the proposed the “chief purposes points” final General’s days receipt within 15 must prepared the cost days receipt or 15 version Budget Joint Legislative of Finance and from the estimates Department (Id., Committee, 9004.) General’s trans- whichever is later. § the official notification summary triggers mission of *42 officials, the the which during to and it starts time State the election county to the initiative to electorate signatures qualify is circulated the petition (Id., 336.) must bear the Each page on ballot. placement § (Id., 9008.) summary. the General’s Attorney § observes, here can be no but As the “there majority question a of version relevant constitutional and statutory provisions require to General the measure’s proponents prior measure submitted the Attorney be the same version of the initiative measure to circulation of ante, 1011-1012, added.) at italics for signature.” (Maj. opn., pp. circulated is not in question. to with this requirement failed comply That proponents of initiative submit- that the version the proposed The majority acknowledges substantively was Attorney General ted the proponents different (Maj. opn., to for signature gathering. the version circulated the public ante, 1023-1024.) at pp.
Nevertheless, to the initiative was concludes it majority proper place of with the substantially complied purpose the ballot because proponents be given General statutory the constitutional and requirement ante, The 1025-1026.) at initiative. (Maj. opn., pp. a copy proposed of this purpose requirement, majority says, includes “that all ensuring ” ante, relevant officials 1024.) are ‘on the same page.’ at (Maj. opn., The p. reasons that majority differences between the two versions were brought to attention public officials and measure before the ballot opponents electorate, materials were printed for distribution to the disparities were such that officials had public time to make revisions adequate “to reflect necessary the version that was to be voted election.” upon ante, 1025.) I (Maj. opn., p. disagree. initiatives,
With to we respect measure substantial compliance by asking whether the failure to with the comply law frustrates the constitutional the electorate goal giving information about the mea- pertinent (Assembly v. Deukmejian sure. 30 Cal.3d 652-653 Cal.Rptr. [180 view, 939].) 639 P.2d In my there is no substantial if the compliance copy proposed submitted to the Attorney General differs from that substantively circulated for the public gathering signatures. copy initiative that submit Attorney General is and treated accepted as the official version of the is It disseminated proposal. throughout the government at both the state and county levels and made available generally as a public record. All who receive the text the initiative through should be process When, here, entitled to on its rely accuracy. as text of an initiative that on the ballot appears differs substantively from the text furnished General, to the Legislature, affected and to the party, public, each loses the to fully assess the measure’s opportunity at the time impact and in the manner contemplated by the state Constitution the state election laws.1
When, here, given copy initiative that is different substantive from the version that respects ballot, on the ultimately appears Attorney General becomes the unwitting agent misinformation by disseminating the text variant state throughout *43 and local and to the government The effects of this public. misinformation are 1 the Attorney At direction of the of the Appeal, Court General a prepared summary title and for the December version of the initiative that did materially differ the from title and summary prepared for the December purpose 6 version. But the of the constitutional and statutory requirement proponents that the of give Attorney an initiative the copy General a of proposed beyond the goes summary. initiative far preparation Attorney the of a title The and General’s title and may not exceed words and is limited to the “chief purpose Code, (Elec. 9002.) and the points” proposed of Appeal initiative. As the § Court of observed: “If compliance the measure of adequacy general summary substantial is the of a such to versions, encompass both the submitted and circulated an unlimited number substantive changes not contained in the copy Attorney submitted to the be to General could made circulating copy.” in well The inaccuracies to but be may profound.
difficult trace and quantify, in influence interested and individuals specifically the variant text may groups to decide whether or not initiative as they matter of subject measure, inaccurate it lead them to make may or endorse oppose likely or its measure what comments about how the will operate public turn, voters to sign place will be. In who registered petitions impact or absence of may by public measure on the ballot be affected presence measure, its comments or or endorsing opposing explaining operation is thus for ballot effects. When the initiative process qualifying the basic misleading, tainted at the information that is or outset incomplete is at integrity the electoral risk. process placed about The General’s inadvertent dissemination misinformation Attorney delay notifying the initiative was exacerbated by proponents’ of the differences between the version of the initiative Secretary of State submitted to the and the that was circulated was one to The submitted the initiative public. proponents 7, 2005, General on mid-May December 2004. In discovered to from the version circulated was different signatures public 13, waited June they version had to General. Yet until they given 2005, before of State their error. versions notifying Both 12, the ballot until August were on judicially enjoined being placed to before the information had just days guide three contents voter received be the State Printer for and distribution to all printing existence 12 million voters California. When the registered approximately of the two versions became matter of finally knowledge, different public either, version, confusion and about which if would be uncertainty placed ballot understand interested necessarily impaired ability parties the measure merits crucial during debate its preelection period.2 (maj. majority are concedes differences between the two versions substantive ante, 1024), at then when it opn., p. attempts “relatively but them as minor” characterize public enough concludes officials and had to comment on the version to others time (id. officials, 1025). upon voted at the election Whether and others p. opponents, minor, so, significant why, and if a matter discrepancies would consider the substantive they provide arguments them to decide for themselves as determine what information event, significant major disparities to make to the In there are between some of the public. “Findings different provisions the two versions involved here. The and Declarations findings and Purpose” example, provisions differed. For the December 6 version added asserting directly accusing legislators declarations conflicts of more incumbent interest in California. The difference is judges apportioning that retired are better suited to districts findings are consider potentially significant purpose because such and declarations of critical may affect how determining adopting ations in the intent of voters in thus (See People ex rel. understood and when later arise. disputes its are construed Lockyer Reynolds Company Tobacco Cal.Rptr.3d 716 [36 R.J. v. Cal.4th *44 (1990) Psychology Assn. Providers v. Rank 408]; [270 Cal.3d 124 P.3d of California addition, except 796].) of initiative stated that Cal.Rptr. proposed In the December 3 version There is no need to so jeopardize of the electoral The integrity process. constitutional and mandate of a true to the providing copy Attorney General of what will be circulated to the electorate for is signatures readily met. All easily any proponent any initiative measure need do to satisfy versions, mandate is to read and both a compare matter of simple Moreover, had, proofreading. after submitting Attorney initiative, General a of the copy at least 15 in proposed which could days they Code, make submitted to the changes (Elec. 9004.) text. As the trial § court it: “There is no put good reason to put courts position to decide having what is good enough for an initiative measure for qualifying the ballot when actual attainable.” compliance easily
The
asserts that the doctrine of substantial compliance
should
here
if the
apply
only
differences between the
of the initiative
copy
submitted to the
General and the
version circulated to the
signature
do
gathering
not effect a
in the
I
change
meaning.
agree.
however,
majority rejects
position,
that it
grounds
would invali-
date a circulated
without
regard
significance
insignificance
ante,
particular differences in
at
meaning (maj. opn.,
1026-1027);
pp.
(id.
that it would not tolerate “any
1027);
departure” meaning
at
and that
p.
it would include “an inadvertent mistake in the
of an
printing
insignificant
(ibid.).
numeral”
The doctrine of substantial
as
compliance,
urged by
General, is
not as strict as the
it
majority
does allow
implies;
differences,
insignificant
minor
departures
legal
and inad-
requirements,
mistakes,
vertent
as
as
do not
long
they
affect the
meaning
proposed
(See
initiative.
653;
v.
Assembly Deukmejian,
Cal.3d
supra, 30
at p.
California
(1934)
Teachers Assn. v. Collins
1037 instead, it separate involves summary; an title or involve inaccurate Moreover, versions, of the initiative. very in text differing meaning, voting misled in the voters have been may whether the goes beyond inquiry different of furnishing booths. be considered are consequences Also to and to Given Legislature public. versions of the initiative proposed accurately can a for a how court challenge, the narrow timeframe preelection have versions could not in the two meaning determine that differences in hold whether or not to affected within the branch about legislative decisions or and whether to and content of such hearings, hearings, propose the form And, the narrow time- the same legislation addressing subject? given enact frame, meaning the differences in how can a court determine that reliably or the two were not to significant any organization, group, prominent versions an for or initiative proposed individual stand taking early against measure, a information about from stand? Inaccurate refraining taking initiative, at an a disseminated meaning widely officially when made stage being are early political key judgments process, initiative, about and about how to frame whether support oppose it, alter entire concerning debate can electoral public subtly process its thereby integrity.3 compromise Limited on MHC Financing is reliance
Misplaced majority’s City Two v. Santee 1372 Partnership Cal.App.4th [23 There, here, the unlike contrary as for a conclusion. Cal.Rptr.3d support 622] an challenge court addressed the issue in the context a postelection Here, we are concerned initiative that was never submitted to electorate. whether, with arise in challenges and when similar situations preelection future, a initiatives be submitted to the electorate for vote.4 should matters,
Preelection review of to initiative judicial challenges different those in- majority issues concerns recognizes, presents a volved review. In an election render moot may postelection particular, majority barring The also asserts that a rule submission of initiative to the voters compel a disparities because substantive between the two versions of initiative could “universally ‘good urgently court to withhold from an needed popular election ante, 1027.) government’ (Maj. opn., equally p. constitutional initiative.” at rule could highly majority’s serve withhold from an election a undesirable initiative measure. The not, unsound, not, argument compliance is because the rule of substantial does and should Indeed, desirability majority’s on comment depend the court’s view of initiative. that, highlights disadvantage subjective with a major approach—the vague its risk standard, actually a court’s compliance substantial considerations will influence inappropriate determination, so perceive to be compliance substantial or that will the court influenced. election, Although filing of this we decide case occurs November after being the Court preelection because the issue resolved whether case context of review being placed the ballot before Appeal enjoining and trial court erred in the initiative from the election.
challenge to an initiative on failure based procedural comply require ante, addition, 1007.) ments (Maj. In process. opn., p. *46 MHC Court Financing assumed that of the Appeal only purpose of Elections Code section 9203 that a local requirement initiative be proposed to the (there, clerk) submitted local election official city was for prepara (MHC tion a and Limited. summary title Financing city attorney. Santee, Two v. Partnership City supra, 1391.) at As we Cal.App.4th p. {ante, 1), have seen & fn. p. constitutional directive that of a statewide initiative submit a proponents Attorney General copy many serves in addition to a and purposes summary title for preparation the initiative.
III. The state Constitution and the implementing provisions require initiative, of a proponents statewide before it circulating General, a text give of its to the who signatures, copy then prepares title of the initiative and text distributes the of the measure to various government offices officials and to interested members of the This public. serves crucial the official requirement establishing purpose of the text initiative so its merits be may carefully accurately examined debated within the in other forums Legislature public during months at which the period leading up election initiative will on the appear ballot. When clear and satisfied directive is easily breached, and about the misinformation initiative’s is meaning inadvertently disseminated at the outset of the inevitable result is distortion campaign, debate on the initiative and electoral compromise process. when,
I would affirm the of the Court of and hold that judgment Appeal here, the its submitted copy Attorney General meaning differs in from the version circulated to the electorate the measure should not on the signatures, ballot. placed Moreno, J., concurred.
WERDEGAR, J., Concurring and I concur in the Dissenting. judgment the case as As the dismissing moot. majority acknowledges, applicable of law rules do not us to invalidate initiative measure the generally permit voters have on account of in the errors measure’s adopted procedural that are not to have affected the fairness of the qualification claimed vote. ante, 1007.) (See maj. the court’s order of opn., p. Consequently, August 77 on the ballot—a in which I did placing ruling Proposition moot as a even before the practical case matter voters participate—rendered the initiative. in the to reserve rejected Language August purporting order did not change after election could not and the case decide jurisdiction grounds. rule relief against granting preelection procedural postelection moot, extensive obiter dicta matter I do not join majority’s Because the was correct. ruling the court’s August on the whether question
Appendix
The following sets forth the differences between the December 6 and December 3 versions of the initiative measure. The of the December language 3 version that the December 6 version to delete set forth double-underlined type. The that the December language 6 version proposed bold type The preexisting language [in to add is set forth brackets]. XXI, article section Constitution that both versions California to delete is set in strikethrough type. forth
PROPOSED LAW REFORM; REDISTRICTING THE VOTER EMPOWERMENT ACT SECTION 1. and Declarations of Findings Purpose of the State of California find People and declare that: (a)_Qur.Legislature be_responsive to the demands of the citizens of should *48 California, legislators or the the State of and not the self-interest.of individual partisan political parties. interests
(b) partisan gerrymandering...have uncompeti- resulted in Self-interest and districts,-ideological polarization our institutions of representative tive in democracy,...and People of California a disconnect between the interests representatives, and elected their
(c) The._re.districting plans adopted -by Legislature the California in 2001 incumbents, People, are repugnant, People, and are in serve opposition to_the_.People’s in fair and competitive elections. direct interest should not be used They again.
.(d.)_We representative system government all, be fair to demand that our open. public scrutiny, interest, conflicts of and dedicated to the ...to free consent, principle government power its from the governed. derives Therefore, People hereby adopt the “Redistrict- of the State.of California ing.Reform: Empowerment The Voter ActT
[(a) Our should be Legislature voters, to the demands of the responsive but law existing very districts, to draw the in places power which elected, are in legislators the hands of incumbent state who legislators, then voters, choose their which is a conflict of interest. has its districts
(b) drawing in members’ Legislature’s The self-interest districts, ideological in partisan uncompetitive resulted gerrymandering, the People interests of and a division between polarization, growing representatives. their elected of California and (c) Legislature The the California redistricting plans adopted districts, number of uncompetitive produced unprecedented People. repugnant and not the and are People, serve incumbents change in not a single The districts of resulted gerrymandered the California Legislature California partisan composition These districts should be 2004 elections. congressional delegation again. as as never used replaced possible soon (d) that impar- of the 1970’s and 1990’s demonstrates experience masters, independent tial who are retired special judges partisan can districts competitive draw fair politics Legislature, their training temperament. virtue of judicial judicial (e) We assure representative system government demand that our their rather than their representatives, representa- voters choose voters, tives choose their that it and free of open public scrutiny interest, embody conflicts of system principle its There- government derives from the consent power governed. fore, the People hereby “Redistricting of the State of adopt California Reform: The Voter Empowerment Act.”]
SECTION 2. Fair Redistricting Article XXI of the California amended to Constitution is read: (a) (b),
SECTION 1. in subdivision provided year Except *49 of year in which the national census is taken under the direction following decade, of a Masters Congress beginning each of panel Special Senatorial, of adjust boundary retired shall lines of the judges composed accordance and Board of districts in Assembly, Congressional, Equalization of standards and this article. provisions section, date (b) Within the effective of this following 20 days a (c)(2), of shall to the subdivision Legislature appoint, pursuant provisions a adopt redistricting adjusting Masters panel Special plan Senatorial, Board of boundary Assembly, Congressional, lines of the for use in the of statewide primary general districts next set Equalization lines elections until the next adjustment boundary required pursuant shall establish a schedule The panel (a) subdivisions or (i) [this article]. and deadlines to ensure timely adoption of the plan. Except for subdivi- (c)(1), sion all provisions of this article shall apply of the adoption plan required by this subdivision.
(c)(1) (b), Except provided subdivision on or before 15 of the January year taken, following year in which the national census is the Legislature shall appoint, pursuant (c)(2), subdivision a panel Special Masters of retired composed judges adopt plan redistricting adjusting Senatorial, boundary lines of the Assembly, Congressional, Board of districts Equalization to this article. pursuant
(2)(A) In sufficient time Masters, to allow the of the appointment Special by lot 24 retired judges willing nominate Judicial Council shall [select] to serve as Special Masters. Only retired California state or federal who judges, have never held elected partisan public office or political office, party have not their changed party affiliation, as declared on their voter registration affidavit, since their initial or appointment election to judicial office, and have not received income during the past months from the Legislature, thereof, a committee the United States Congress, thereof, committee a political or a party, partisan candidate or committee controlled by such candidate, are qualified Master Special to serve as [Special Masters]. Not more than 12 of the 24 retired be of a judges may affiliation, single party the two largest political California shall parties be equally represented nominated retired among judges. [appointed] to serve as a
(B) A selected retired judge Master shall Special also pledge, writing, that he or she will not run for election in the Senatorial, Assembly, or Congressional, Board of districts ad- Equalization justed him or her by to this article pursuant nor for at least five accept, years Master, the date of as a appointment Special California state public office, employment other than judicial employment office judicial or a teaching position.
(C) From the of retired [selected] pool judges nominated Judicial Council, the Speaker Assembly, Minority Leader of the Assembly, Senate, the President pro and the Tempore Leader of the Minority nominate, Senate shall each five [six] no later than before the days deadline Masters, appointment panel three retired who Special judges, are registered members the same as that of the political party legislator making nomination. No retired nominated judge may more than one *50 legislator. If, reason,
(D) any aforementioned any fails legislative leadership to nominate the number of retired requisite within the time judges period herein, draw, the Chief Clerk of the shall Assembly immediately by
specified lot, that in accordance with the legislator’s nominees remaining requirements (c)(2)(c). of subdivision
(E) [four] three No later than before the deadline for days appointment Masters, a retired each authorized to nominate panel Special legislator shall also be entitled to exercise a judge challenge striking single peremptory the name of nominee of other any any legislator.
(F) From the list of nominees selected said remaining by legislative draw, lot, the Chief Clerk of the shall then three leadership, Assembly by to serve as Masters. If the fails to at least persons drawing Special produce one Master from each of the Special largest two political parties, drawing drawing Tf the shall be conducted until again is met. requirement unable, , produce one-Special largest each of the two at least Master from political parties,..the drawing Special for the Master from political party no-Lrepresented remaining..noimne.es shall be made from the from the list of original pool-of... said list of remaining judges retired nominated [If nominees does not include a retired from each of the two judge largest political parties, drawing for the Master from the absent Special political party or shall parties be made from the original pool retired twenty-four judges Council, selected] by Judicial that no except retired judge (c)(2)(E) whose name was struck to subdivision pursuant may Masters, In the event of a in the appointed. vacancy panel Special draw, lot, Clerk Chief shall immediately thereafter from the list of remaining nominees selected said or the legislative leadership, original of 24 retired if pool judges, for those whose names necessary, except were struck, a who satisfies the for the replacement composition requirements under this subdivision. panel
(d) Each Master shall be at the Special same rate for each compensated day engaged official duties and reimbursed for actual and necessary expenses, including travel in the same expenses, manner as a member of the California Citizens Commission Compensation subdivision of Section 8 pursuant (j) of Article HI. The Masters’ term of office shall Special expire upon approval aof rejection (h). subdivision plan pursuant
(e) Each Master shall be to the same Special subject restrictions on gifts on a retired imposed judge court superior serving assigned interest, judges and shall file a statement of economic program, document, successor to the same extent and in same manner as such a retired judge. Masters,
(f) (1) Public notice shall be of all given meetings Special and the Masters shall be deemed a state Special body subject *51 (Government Code Act Bagley-Keene Meeting Open time; act, 11120-11132), or as amended from time successor any §§ that all and sessions of the Masters shall meetings provided Special that restrict ex The Masters shall establish procedures parte recorded. Special concerning members of the and the Legislature communications public the merits of any redistricting plan. establish and a schedule to
(2) The Masters shall panel publish Special comment from receive and consider redistricting plans proposed member of the The Masters shall Legislature public. panel Special the state to consider redistrict- hold at least three public hearings throughout after the Masters At least one such shall be held ing hearing Special plans. (f)(3) their to subdivision redistricting have submitted plan pursuant but the final before adoption plan. a final Masters redistricting Special Before the adoption plan, to comment
shall submit their for an Legislature opportunity plan Masters shall address within the time set Masters. The by Special Special to their that is recommended by Legislature each writing change plan into the plan. incorporated The final shall be resolution by single (g) redistricting plan approved effective Masters and shall become unanimously by upon adopted Special of State for use at the next statewide its filing Secretary primary elections, and, (h), to subdivision if general adopted by pursuant until the next adjustment remain for elections succeeding [shall effective] of boundaries is to this article. required pursuant if it
(h) shall submit the final redistricting plan of State under Section 8 of Article II at the same were as an initiative statute specified] [as provided (g) under subdivision next election general until the for use in elections succeeding voters approval rejection by read: is The ballot title shall “Shall next of boundaries adjustment required. Senatorial, and Board of Assembly, Congressional, lines boundary Article XXI Masters as required by districts Equalization adopted Special Constitution, election, for this be used until the of the California and used of the boundaries?” adjustment next constitutionally required the voters to subdivi- (i) If the redistricting plan approved pursuant the next adjustment elections until (h), succeeding sion it shall be used the voters If the is rejected by pursuant boundaries is required. plan within Masters shall be (h), subdivision a new of Special appointed panel (c)(2), for the purpose in the manner in subdivision days provided elections general a new for the next statewide primary proposing plan *52 to this article. officials elected under a final pursuant Any redistricting plan shall serve out their term of office voters’ notwithstanding disapproval in use and elections. plan succeeding primary general The shall make from the
(j) Legislature Legislature’s such appropriations IV, as limited Section 7.5 of Article as operating budget, necessary with office provide Masters panel Special equipment, space, counsel and in the field of necessary including personnel, independent experts them in their redistricting to assist work. computer technology, Legislative shall determine the maximum amount of the Analyst appropria- tion, based on one-half the amount in expended by Legislature creating the California Consumer Price Index. For plans adjusted by purposes (b) under redistricting subdivision there is plan only, hereby to the appropriated Masters from the General Fund of the panel Special State the fiscal in which the during year its panel performs responsibilities sum to one-half the amount equal Legislature creating expended in 2001. The plans of funds under this shall be expenditure appropriation subject normal administrative review to other state given appropria- tions. For (a), of all under purposes subdivision until plans redistricting made, Office, are appropriations Legislative or successor Analyst’s any thereto, furnish, resources, shall staff and existing services to the panel as needed for the of its duties. performance decrees,
(k) Except judicial of this article are the exclusive means of adjusting lines of the boundary districts specified herein[, and the powers under Sections 8 and Article II 9 of shall be used only in the manner (h) specified (g) subdivisions herein]. Senate, (a)
Section 2. Each member of the and the Assembly, Congress, Board of shall be elected from a Equalization single-member district. Dis- tricts each shall be numbered type consecutively commencing northern of the State and boundary at the southern ending boundary.
(b) The of all districts of a population shall be as particular type nearly districts, For equal practicable. congressional the maximum population deviation between districts shall not exceed federal constitutional standards. districts, For state legislative Board of" the maximum Equalization deviation between population districts of the same shall not exceed one type stricter standard percent any federal law. required by (c) Districts shall additional of the United comply requirements statute, States Constitution and federal the federal any applicable including Voting Act. Rights be of 10
(d) adjacent Each Board of district shall comprised Equalization be of two adjacent Senate districts and each Senate district shall comprised districts. Assembly
(e) district shall Every contiguous. of a (f) conform to the boundaries geographic District boundaries shall In this extent city county greatest practicable. county, city, in the following shall with these criteria regard, redistricting plan comply *53 (2) create (1) create the most whole counties order of importance: possible, (3) create the most whole cities the fewest county fragments possible, as neces- create the fewest city fragments possible, except possible, subdivisions of this to with the sary preceding comply requirements section. to the extent district shall be as as
(g) Every practicable except compact subdivisions of with the necessary requirements preceding comply a contigu- to the extent regard practicable this section. With compactness, an area of ous area of shall not be bypassed incorporate population more distant. population be
(h) satisfy No census block shall unless fragmented required of the United States Constitution. requirements
(i) No consideration shall be as to the effects incumbents given potential an incumbent or of any or No data the residence of regarding political parties. or the affiliation or of electors be voting history may other candidate party federal law. used in the of plans, except required by preparation a Section 3. action or alleging plan adopted Any proceeding of this article must Masters does conform with requirements Special or with the of State be filed within 45 of days filing plan the conformity forever barred. Judicial review of such action or proceeding to a with the of this article bemay pursuant any plan requirements to be in violation of this relief. If court finds extraordinary any plan article, Masters it order that a new may plan adopted panel Special order to effectuate any remedy necessary to this article. A court may pursuant this article. under the-national census is taken
In in which year the-year-following decade, each the- Legislature at the beginning the-direction of Congress Senatorial, lines of the Assembly;-Congressional, shall adjust boundary conformance with the- following and—Board of districts-in Equalization standards: n Senate,
(-a^--Eaeh--member the Board Assembly, Congress, shall be elected from a district. Equalization single-member (b) The of all districts population of-a-paFticular-type-shall-be^eas-enably equat
(c) Every district-shalTbe-eont-iguous. (d) Districts of -numbered eaeh-type-shall-be consecutively commencing-at the northern boundary-of-the-state-and at the southern ending boundary.
(e) -The integrity-of-any or of geographical city, county, city county, to the extent any-geographical region without shall-be-respected- possible violating other requirements subdivision of this section. SECTION 3. Severability
If any provision this measure or the thereof to application any person invalid, to, circumstance is held (b) but not limited including, subdivision *54 XXI, Section 1 of Article shall not affect other invalidity which can applications effect reasonably in the absence of the given invalid provision application.
SECTION 4. Ballot Conflicting Measures
(a) In the event that this measure and another measure or measures relating Senatorial, redistricting Assembly, or Board of Congressional, election, districts is Equalization at the approved by majority voters same and this measure receives a number greater of affirmative votes than any measures, other such measure or this measure shall control in its entirety said other measure or measures shall be rendered void and without any legal effect. If this measure is but does not receive a number approved greater measures, affirmative votes than said other measure or take measure shall effect to the extent law. permitted by
(b) If this measure is voters but approved by law superseded by by any other election, ballot measure conflicting the voters at the same approved by and the invalid, ballot conflicting measure is later held this measure shall be self-executing full force of given law.