Gov.’s Remap Bid Ruled Invalid

Times Staff Writer

Delivering a substantial blow to Gov. Arnold Schwarzenegger’s “year of reform” agenda, a judge Thursday struck from the special election ballot an initiative that would have wrested away the Legislature’s power to draw political districts.

Sacramento County Superior Court Judge Gail Ohanesian ruled that the initiative should not have been placed on the Nov. 8 ballot because the wording circulated on voter petitions had not been approved according to law.

The decision was a victory for Atty. Gen. Bill Lockyer, who had sued to block Proposition 77 after learning that backers had submitted one version to his office -- the first stop in California’s initiative process -- but circulated a different one to the more than 950,000 voters who signed petitions to put it on the ballot.


The ruling, which Proposition 77 proponents vowed to appeal, seriously weakens the ambitious plan that Schwarzenegger spelled out in his January State of the State speech. Already the governor has dropped a public pension overhaul initiative because of errors in the way it was written.

Schwarzenegger had vowed to take away the Legislature’s ability to shape its own voting districts, which Democrats and Republicans have both long used to maintain power and keep challengers at bay. But his move to put the redistricting task in the hands of independent judges annoyed politicians from both parties.

Removal of the measure would leave just two governor-backed initiatives for the special election that Schwarzenegger called at a cost now estimated to be at least $50 million: an initiative to curb spending in a way that would increase the governor’s power to make budget cuts and one that would make it harder for public school teachers to earn tenure.

“It removes the underpinning of his most important reform proposal, and I use ‘reform’ in the broadest sense possible,” said Lance Olson, an attorney for the No on Proposition 77 committee, which intervened in the case. “So now we’re going to have a special election over whether teachers are entitled to a hearing after two years or five years. What a waste of taxpayer money.”

He called Schwarzenegger’s political team “the gang that can’t shoot straight.”

The defeat also will probably weaken the governor’s ability to negotiate further initiatives with legislative Democrats, who hold majorities in both houses.

Schwarzenegger spokeswoman Margita Thompson said the governor was “disappointed that the ruling has silenced the voices of 950,000 Californians. He hopes the proponents will appeal.”

Thompson added that the governor’s office was not involved in the preparation of the initiative.

In her ruling, Ohanesian rejected the arguments of Proposition 77 proponents that the differences in the two texts were too insignificant to matter to voters.

“The procedures in question are clear and well known and easily followed,” said the judge, who ruled from the bench after a 2 1/2 -hour hearing. “There is no good reason to put the courts in the position of having to decide what is good enough for qualifying an initiative measure for the ballot when actual compliance is easily attainable.”

She also rejected the argument that disqualifying the initiative would “disenfranchise” the nearly 1 million people who signed petitions, saying that proponents still have time to properly qualify the initiative for the June 2006 ballot.

Her order bars Secretary of State Bruce McPherson from including Proposition 77 on the Nov. 8 ballot.

The initiative was placed on the ballot by People’s Advocate Inc., a Sacramento anti-tax group, with the help of Citizens to Save California, a committee backing Schwarzenegger’s broad ballot agenda.

It would take authority to draw boundaries for legislative, congressional and Board of Equalization districts from the Legislature and give it to a panel of retired judges selected through a complicated process involving the Judicial Council and legislative leaders. Schwarzenegger has called such independent redistricting critical to making races more competitive and lawmakers more responsive to voters.

People’s Advocate Chief Executive Ted Costa, whose office manager inadvertently sent the wrong version of the initiative to a printer, said he assumes all responsibility.

“It’s not a nice mistake,” he said. “We figure it was a legitimate mistake, an honest mistake, and we figure those differences are very small.... No voter was here saying they were misled by it.

“Reforms go on. We’ve been trying for 20 years to get good, fair districts so the people have a chance to take their government back.

“Next year or the year after, we will be working toward that goal regardless of what it takes, and tomorrow we’ll be working on an appeal.”

Both sides agree to the basic facts of the dispute: Backers of the initiative submitted to the attorney general a different version of the initiative than they circulated to voters for signatures. There were at least 11 variations, some involving a single word and some involving entire paragraphs.

By law, Lockyer’s office must write a brief description of the measure to help voters understand what it would do. The title and summary are then forwarded, along with a copy of the initiative text, to the secretary of state so signature-gathering can begin. Each petition must include a copy of both the full text and the title and summary.

Deputy Atty. Gen. Vickie Whitney argued before Ohanesian that proponents of Proposition 77 violated a constitutional mandate. She characterized their argument as “close enough is good enough” and said the different versions of the measure shake voter confidence in the initiative process.

“Should the court create an exception here today to requirements, where does the line get drawn after today?” Whitney asked.

Daniel Kolkey, attorney for People’s Advocate, argued that the group was in “substantial compliance” with election law and that the court should not lightly dismiss the will of nearly 1 million voters.

He called the differences in the text “largely stylistic with one technical difference” that doesn’t affect the operation of the initiative. The title and summary written by the attorney general are accurate for both versions, he said. “The touchstone here is whether voters were misled,” Kolkey said, “and no voters were misled.”

The judge disagreed, ruling that “the public and the government officials are entitled to rely” on the approved version.

Kolkey said he would immediately petition the 3rd District Court of Appeal to stay Ohanesian’s order so Proposition 77 can still appear in the Voter Information Guide scheduled to be put on public display by the secretary of state’s office beginning Tuesday. The display period, which lasts until Aug. 15, is designed to allow the public a chance to challenge the wording in the guide before it is mailed to millions of voters.

The appeal may be complicated by the fact that Kolkey served on the 3rd District Court of Appeal until less than two years ago. He was appointed by former Gov. Pete Wilson and served with most of the judges who are still on the bench.

Not including the redistricting initiative, seven measures have qualified for the ballot, including initiatives to require that girls notify their parents before they have abortions and to make it more difficult for unions to spend their members’ dues on political activity.

Talks lately have sputtered between Schwarzenegger and legislative leaders on new ballot measures. The deadline for adding legislative ballot measures is midnight Aug. 18.

Assembly Speaker Fabian Nunez (D-Los Angeles) said earlier this week that he was skeptical of an agreement, and called Schwarzenegger’s spending limit initiative, Proposition 76, the sticking point. Nunez’s spokesman, Steve Maviglio, said after the judge’s ruling on the redistricting initiative that “chances went from bad to worse.”

“There are two flat tires on the reform Hummer,” said Maviglio, referring to the governor’s fondness for the large sport utility vehicles. “We are not going to be there to pump them back up.”

Democratic lawmakers on Wednesday announced that they would hold hearings next month to try to learn more about when proponents knew about discrepancies in the initiative and why they did not notify the secretary of state’s office until June 13 -- three days after McPherson’s office had certified the measure to appear on the ballot.

Lawmakers have also said they want to learn more about the involvement of the governor’s legal secretary, Peter Siggins, in the disclosure. Siggins has said he was in contact with Kolkey about the error and learned of it in May. He said he intended to alert the secretary of state about the mistake but was caught off-guard when certification happened so quickly.

In her ruling, Ohanesian found insufficient evidence to know when the initiative backers learned that the attorney general and voters had received two versions. But before they submitted signatures to county elections officials starting May 5, she said, they should have known “in the exercise of ordinary care.”



Comparing the two versions

The attorney general reviews proposed initiatives, then adds a title and summary before supporters can seek signatures to place one on a ballot. A redistricting measure sought by Gov. Arnold Schwarzenegger was invalidated Thursday when a judge ruled that the circulated version was different from what was approved. Here is a comparison of one section, with bold text indicating changed wording:

Approved Text

(a) Our Legislature should be responsive to the demands of the voters, but existing law places the power to draw the very districts, in which legislators are elected, in the hands of incumbent state legislators, who then choose their voters, which is a conflict of interest.

(b) The Legislature’s self-interest in drawing its members’ districts has resulted in partisan gerrymandering, uncompetitive districts, ideological polarization, and a growing division between the interests of the People of California and their elected representatives.

(c) The redistricting plans adopted by the California Legislature in 2001 produced an unprecedented number of uncompetitive districts, serve incumbents and not the People, and are repugnant to the People. The gerrymandered districts of 2001 resulted in not a single change in the partisan composition of the California Legislature or the California congressional delegation in the 2004 elections. These districts should be replaced as soon as possible and never used again.

(d) The experience of the 1970’s and 1990’s demonstrates that impartial special masters, who are retired judges independent of partisan politics and the Legislature, can draw fair and competitive districts by virtue of their judicial training and judicial temperament.

(e) We demand that our representative system of government assure that the voters choose their representatives, rather than their representatives choose their voters, that it be open to public scrutiny and free of conflicts of interest, and that the system embody the principle that government derives its power from the consent of the governed. Therefore, the People of the State of California hereby adopt the “Redistricting Reform: The Voter Empowerment Act.”

Circulated Text

(a) Our Legislature should be responsive to the demands of the citizens of the State of California, and not the self-interests of individual legislators or the partisan interests of political parties.

(b) Self-interest and partisan gerrymandering have resulted in uncompetitive districts, ideological polarizations in our institutions of representative democracy, and a disconnect between the interests of the People of California and their elected representatives.

(c) The redistricting plans adopted by the California Legislature in 2001 serve incumbents, not the People, are repugnant to the People and are in direct opposition to the People’s interest in fair and competitive elections. They should not be used again.

(This declaration was removed in the circulated version)

(d) We demand that our representative system of government be fair to all, open to public scrutiny, free of conflicts of interest, and dedicated to the principle that government derives its power from the consent of the governed. Therefore, the People of the State of California hereby adopt the “Redistricting Reform: The Voter Empowerment Act.”

Source: California attorney general’s office

Times staff writers Evan Halper and Peter Nicholas contributed to this report.