Expect to Fight for Marriage Equality in the November California Election: Lawsuit to Keep Prop 8 Off Ballot Not Likely to Succ

[courtesy of California Progress Report]

By Brian Leubitz
Founder and Publisher
Calitics

On June 20, Equality California, NCLR, and a whole host of groups filed suit in the Supreme Court of California against our Secretary of State, Debra Bowen. (Note that Debra Bowen is an amazing Secretary of State; she's getting sued in her Secretary of State capacity.) To grossly oversimplify, EQCA alleges that the signature gathering process was flawed for a few reasons:

• "The proposed initiative is invalid because it is a proposed constitutional revision, not a proposed constitutional amendment and, as such, the California Constitution provides that it may not be enacted by initiative"

• "The description of the proposed initiative in the petitions that were circulated for signature was materially misleading and materially misstated the effect of the proposed initiative to the electors signing the petitions to qualify the measure for the ballot.

Ultimately, this is a long shot. For a number of reasons, the Supreme Court is unlikely to pull the measure off the ballot in November. First the general process questions:

Why go to the Supreme Court directly?

On a few issues, the California Supreme Court has so-called "original jurisdiction." Basically, this just means that they can take the case without the case working its way through the court system. This requires that there are no issues of fact, only of law and that there is a pressing time concern. There is a lot of discretion involved on this issue of law, so this is one way the Court can punt the case until November.

When does the Court prefer to act on challenges to initiatives?

Generally, post election. This was restated in Independent Energy Producers Assn. v McPherson all the way back in 2006. Some energy producers tried to kick Prop 80, a energy reregulation bill, off the ballot. Ultimately the initiative lost badly, so the court ended up looking good on punting the issue, but they did issue something of an advisory opinion stating that pre-election review is generally frowned upon. Or to pull directly from case law: