Suit Could Kill Ballot Initiative

SACRAMENTO —  Atty. Gen. Bill Lockyer asked a court Friday to remove an initiative backed by the governor from the November special election ballot, saying the petitions voters signed were “substantially different” from what the attorney general had approved.

The initiative, sanctioned for the ballot by more than 950,000 people who signed the petitions, would change how congressional and legislative districts are drawn, shifting the job from lawmakers to a panel of judges.

Lockyer, a Democrat, sued Republican Secretary of State Bruce McPherson in Sacramento Superior Court in an effort to force McPherson to take the measure, Proposition 77, off the ballot.

The version of the initiative that voters signed is different in 11 places from the petition approved by Lockyer, a review of the two documents shows.

Promoters of the initiative said they had accidentally sent the wrong version to the printer before they began gathering signatures.

“Regardless of whether the error was intentional or not, the use of different initiatives cannot be condoned or tolerated,” Lockyer said in a statement. “Permitting proponents to change a measure after issuance of the title and summary would open the door to ‘bait and switch’ tactics.”

The lawsuit is the latest political and legal problem to plague an initiative promoted by Gov. Arnold Schwarzenegger.

He delayed an overhaul of the state’s public pension system after Lockyer determined it would end death and disability benefits for public safety workers, and he dropped another initiative to pay teachers based on merit

Under the law, the attorney general, the state legislative analyst and the Department of Finance must review all initiatives before signature-gathering can begin.

Lockyer issued a title for the redistricting initiative and a 100-word summary on Feb. 3, and proponents of the measure eventually submitted 950,000 signatures.

The initiative qualified for the ballot on June 10 -- a few days before initiative backers informed McPherson of the problem.

The major political parties object to the redistricting initiative because it would end their ability to draw election districts favorable to their own members. Schwarzenegger has said he wants an independent approach, to eliminate the ability of incumbents to win reelection without competition -- part of a four-item agenda he unveiled in January.

Ted Costa, chief executive of the anti-tax group People’s Advocate and the primary proponent of the initiative, said Lockyer was filing suit in time for courts to rule before the election.

“I’m told by the legal people I talk to that we’ve got an awfully strong case,” he said. Schwarzenegger spokeswoman Margita Thompson said the difference between the two versions of the initiative “are minimal and the governor believes the people should be allowed to vote on the initiative. We believe the courts will uphold the rights of the over 900,000 people who signed the petition to have the initiative placed on the ballot. We look forward to a quick resolution of the case.”

McPherson wants Proposition 77 to stay on the Nov. 8 ballot, but said he needs guidance on which version to put before voters. Backers of the initiative say it should be the version that voters signed, rather than the one Lockyer approved. “It is in the best interests of the people for a speedy, certain, and final judicial resolution of the questions in this matter,” McPherson wrote to Lockyer on Thursday, saying that the will of petition-signers should not be ignored.

Lockyer said that the differences between the two texts were not minor and that they violated the Constitution. One distinction is that “nominated” becomes “selected” in regard to the procedure for picking a pool of judges to redraw districts.

In two sections, the number of days allowed to pick the judges is changed. The petition that voters signed gives Democratic and Republican legislative leaders five days to pick a panel of judges and the petition Lockyer approved gives them six days. The time lawmakers have to challenge a judicial choice is given as three days instead of four.

Lockyer’s suit cited a 1998 Santa Clara County case in which a petition was circulated for a referendum on the development of an office park. A judge invalidated the referendum because some pages of the petition dropped the words “four acres” from the title.

Attorney Dan Kolkey, legal secretary to former Gov. Pete Wilson, helped write the Costa initiative and said the foul-up did not mislead voters. The issue, he said, is whether Lockyer’s summary was misleading because it was based on a text different from the one signed by 950,000 voters. It is not, he said.

Kolkey said Lockyer’s suit could put future initiatives at the mercy of typos, clerical errors or printing mistakes that don’t change them in any substantial way.

“The courts have been quite clear that as long as human error does not mislead the voters or affect the thrust of the initiative, it’s going to go on the ballot,” he said.

Kim Alexander, president of the California Voter Foundation, a nonprofit organization based in Davis, said most voters don’t read the entire text of initiatives when they are signing petitions. But she said people often read the text on Lockyer’s website, and she worried about the effect on voters who discover that changes were made.

“It could set a dangerous precedent to allow an initiative to go to the ballot that differs from the one that was submitted to the attorney general,” Alexander said. “I think we run the risk of undermining voter confidence in the initiative process.”

If the redistricting proposition were removed, the special election ballot would include only two initiatives pushed by Schwarzenegger: Proposition 74, which would extend the time required for teachers to receive tenure and would make it easier to fire poorly performing teachers; and Proposition 76, a measure to cap state spending.