Justices Bar Redistricting Effort

Times Staff Writer

In another setback to Gov. Arnold Schwarzenegger’s “year of reform” agenda, an appeals court on Tuesday blocked his redistricting initiative from the November special election, ruling that supporters of the measure violated state election law in the way they put it on the ballot.

The ruling is a victory for state Atty. Gen. Bill Lockyer, who sued last month to keep the measure off the ballot and now has won in two courts.

For the record:

12:00 AM, Aug. 11, 2005 For The Record
Los Angeles Times Thursday August 11, 2005 Home Edition Main News Part A Page 2 News Desk 1 inches; 44 words Type of Material: Correction
Prop. 77 ruling -- An article in Wednesday’s California section about an appeals court decision on the redistricting initiative said 3rd District Court of Appeal Justice Coleman A. Blease was appointed by former Gov. Gray Davis. He was appointed by former Gov. Jerry Brown.

Supporters of the measure promised to appeal yet again, saying they would ask the California Supreme Court to review the case. The high court, which can choose not to act, would have to move quickly, because the state printer is scheduled to begin producing 12 million voter guides Monday.

Anticipating a Supreme Court review, the appeals court allowed the redistricting measure, Proposition 77, to be included in election materials now on public display until midnight Sunday.


The ballot initiative would strip the Legislature of the power to draw the boundaries of legislative and congressional districts and give it instead to a panel of retired judges. Schwarzenegger supports it -- one of three measures he backs for the November ballot -- because he says it would change a system in which incumbents are almost guaranteed reelection.

No legislative or congressional seats changed parties in the last election, and such lack of competitiveness, Schwarzenegger has said, “is not real democracy.”

Making districts more competitive between Republicans and Democrats would allow moderates in both parties to hold more seats in the Legislature and Congress, some supporters say.

At issue in the court case is not the substance of the initiative, but the process that got it to the ballot. Supporters gave one version of the initiative to the attorney general’s office for review and a different version to voters when they circulated it for signatures. The argument has turned on whether the discrepancies were serious enough to require supporters of the measure to repeat the process of gathering signatures.

Backers of the initiative say that the discrepancies resulted from an innocent mistake and that the differences were unimportant. A trial court in Sacramento rejected that argument earlier this month. Now, in a 2-1 vote, the 3rd District Court of Appeal has done so too.

The two versions of the text differ in 17 places, including the introduction, which sets out a case for redistricting reform, and in language that sets the number of days for legislative leaders to choose judges for the panel that would draw the new district boundaries, Justices Coleman A. Blease and M. Kathleen Butz said in their opinion.

Such discrepancies “sow confusion,” they said, adding that asking judges to decide which changes in meaning are too small to matter “usurps the prerogatives of the electorate.”

The anti-tax group People’s Advocate of Sacramento, which sponsored the measure, “caused the problem in this case by their own negligence,” the justices wrote. “They exacerbated that problem by concealing it until after the secretary of state had certified the initiative measure for the ballot and failing to make any public disclosure.”


The dissenter in the case, Presiding Justice Arthur G. Scotland, argued that “there is no reasonable possibility” that voters were misled by the differences between the two versions. Courts should wait to see if the proposition passes, and then review the issue after the election, he argued.

Scotland was appointed to the appeals court by former Gov. George Deukmejian, a Republican; Blease and Butz were appointed by former Gov. Gray Davis, a Democrat.

Ted Costa, chief executive of People’s Advocate, did not return a phone call seeking comment.

Daniel M. Kolkey, an attorney for the group and a former appeals court justice, said he would seek an emergency review from the state Supreme Court.


Rick Hasen, an election-law expert at Loyola Law School, called it “unlikely but possible” that the high court would consider the case. Ordinarily, the court doesn’t hear arguments during the summer, he said, and both the majority and dissenting opinions of the appeals court were well reasoned.

Still, he said, the court could jump into the fray. “The question of how close is close enough,” he said, “is something the courts continue to struggle with.”

Schwarzenegger, in a statement released by one of his political committees, the California Recovery Team, said the court had “ignored the will of nearly 1 million Californians who signed petitions demanding redistricting reform.”

“I believe that Proposition 77 earned a rightful place on the November ballot,” the governor said, “and the people of California should be given the right to vote on it.”


Lockyer, however, praised the ruling, saying it would prevent “bait-and-switch tactics that can expose initiatives to corruption.”