Initiative Is Under Review

Gov. Arnold Schwarzenegger is facing yet another problem over one of his high-profile initiatives: The version that petition-signers placed on the ballot is different from the one state officials approved for circulation.

The problem emerged three weeks ago in the bid to change how district boundaries are drawn for elected officials. The governor wants a panel of retired judges to establish the lines, potentially altering the balance of power in Sacramento.

Backers of the initiative said they made a “small legal error” as they gathered signatures this winter and spring: The petition voters saw was not exactly the same as the one approved for circulation by California Atty. Gen. Bill Lockyer and reviewed by the state legislative analyst, as the law requires.

California Secretary of State Bruce McPherson has asked Lockyer’s office for a legal opinion on how to proceed with the redistricting initiative, which more than 900,000 voters approved for the Nov. 8 special election ballot. It will be known as Proposition 77.

Aides to McPherson and Lockyer declined to comment except to confirm that the legal review was taking place. Supporters of the initiative dismissed the problem as insignificant but were bracing for a lawsuit this week, possibly filed by the attorney general.

The text of any initiative must first be reviewed by Lockyer’s office; then his attorneys compose a title and summary. Initiative backers then print petitions -- with the initiative’s text, the title and the summary -- that are circulated among voters.

A copy of the circulated version of the redistricting measure was not immediately available to The Times. But, according to backers of the initiative, it gives legislative leaders one day more than the Lockyer-approved version to select the retired judges who would draw the districts. In addition, the preamble of the initiative is condensed from five paragraphs to four in versions displayed by signature-gatherers on the street, they said.

Lance Olson, a prominent Democratic lawyer, said showing voters a different version from the one approved by Lockyer’s office could be a “fatal flaw,” particularly if crucial words were changed or sentences dropped.

“You can’t have a bait and switch,” he said.

Conservative activist and initiative proponent Ted Costa, chief executive of People’s Advocate, said he found out about the different drafts a month ago and now predicts that someone will use the discrepancy to challenge the initiative in court.

“On the last 13 initiatives [we’ve sponsored], we’ve been sued on every one of them,” Costa said. But he expressed certainty that the courts would uphold the initiative.

“I would suppose that anyone who doesn’t like redistricting would probably think this is serious,” he said. But “if you look at all the legal precedents, they’re all on the side of” allowing “a small legal error in an initiative.”

Last month, Schwarzenegger used his executive powers to order a special election for Nov. 8 to consider eight initiatives. He is backing three: one that would make it easier to fire poor-performing teachers, another installing a state spending cap and the one eliminating the ability of legislators to draw their own districts.

The governor has pulled back a proposed initiative that would have overhauled the public pension system. He said a drafting mistake had led people to believe that death and disability benefits would be eliminated for police and firefighters. That initiative is being rewritten for the June 2006 ballot.

The redistricting measure requires that a panel of retired judges draw the legislative boundaries of state lawmakers, U.S. representatives and members of the state Board of Equalization. Schwarzenegger says lawmakers currently draw district lines in a way that unfairly protects incumbents from competition.

Bill Mundell, chairman of Californians for Fair Redistricting, a major backer of the initiative, said the difference between the petition approved by Lockyer’s office and the one voters saw was so insignificant that “it’s highly unlikely the judicial system would stand by and ignore the will of a million people.”

San Francisco attorney Daniel Kolkey, who served as legal affairs secretary to former Gov. Pete Wilson, helped Costa write the initiative. He noticed the differences and notified the secretary of state’s office June 13.

The version submitted to the attorney general was the final one he and Costa had agreed upon, Kolkey said.

But, he added, when it came time to print copies for signature-gatherers to display, somebody in Costa’s office mistakenly sent an earlier draft to the printer.

Kolkey downplayed any potential problems and said a legal challenge would be “meritless and an act of obstruction.”

He said “all the differences are immaterial. They’re largely stylistic. In a number of places the word ‘selected’ is used rather than ‘appointed.’ In one section the words ‘provided for’ are used instead of ‘as specified.’ ”

It’s not the first problem to emerge over the redistricting measure, which went through several significant revisions as it was being written. On the street, some voters signed petitions for an older version that had been approved by Lockyer as well but that was eventually discarded by petition-gatherers in favor of the newer one.

Two months ago, as they were counting petitions, elections officials in a few counties said they noticed that the older version had been commingled with petitions for the newer version. They culled those old petitions from the pile during the counting process.

“We just did not count those signatures, and they still had plenty,” said Freddie Oakley, the Yolo County elections chief. “I think it was a wretched thing to happen, but practically speaking, it wasn’t a problem.”