(sometimes, close recount elections don’t go our way. – promoted by Dante Atkins (hekebolos))

It is with a heavy heart that I report the news that things aren’t looking good in the Jackson-Strickland race in SD-19.  Strickland has retaken a lead in the provisional and absentee counts that he is unlikely to relinquish barring a small miracle, as favorable Santa Barbara County is nearly entirely counted, leaving pro-Strickland Ventura County and the pro-Strickland sliver of L.A. County to probably pad his lead.  The Santa Barbara Independent has more:

Tony Strickland surged to a 1,560 vote lead over Hannah-Beth Jackson Wednesday, on the strength of newly counted ballots in Ventura County. Santa Barbara county’s registrar also reported counting new ballots, which favored the Democrat, but not by nearly enough to make up for the Republican’s strength in Ventura.

It is the first significant lead for either candidate in the closely-contested 19th state senate district since Election Day, and puts Strickland in a commanding position, as counting continues in three counties with portions of the sprawling district.

The overall tally now stands at:

Strickland 187,631 (50.20)

Jackson 186,071 (49.79)

A 1,560 vote lead normally wouldn’t be insurmountable with well over 50,000 votes left to count.  Unfortunately, most of those voters are likely to accrue in Strickland’s favor:

About 1,000 vote by mail ballots remain to be counted in Santa Barbara County, the only place where she has run ahead of Strickland, in addition to about 6,000 provisional ballots; the latter are likely to favor Jackson, as many of them are believed to have been cast by late-registering UCSB students.

However, Strickland is winning handily in Ventura County, which has about 40,000 absentees and 15,000 provisionals outstanding; he has also run well ahead of Jackson in the small part of the district that is in L.A. County. There, the registrar has about 225,000 more vote by mail ballots to count, but only a small number of them are in the 19th district.

Make no mistake about it: this is a tough loss to take if all goes as it appears.  For me, it’s even tougher than Prop 8, and not just because I live in the district.  With Prop 8, there was a sense that we lost due to complacency and poor messaging; with Hannah-Beth, we made our best case and put everything we could into the fight, given the simultaneous urgency of a national election.  The idea that extremist Phony Tony Strickland will be my State Senator for the next four years is literally sickening to me.

But there is some good news for the future that should worry both of the execrable Stricklands.  Red Zone candidate Ferial Masry ran a surprisingly close race against Audra Strickland in the 37th Assembly district representing parts of Ventura and L.A. counties, coming within 3 points of victory in that tough district (and this despite numerous disadvantages in funding, candidate support and perceived “Americanness”).  There is no reason to believe that we cannot build on this success by holding Audra accountable for her votes.

As for Tony?  He’s got three big problems.  The first is that Ventura County flipped from red to blue earlier this year in terms of voter registrations–and those numbers have shifted even farther in our direction since.  This is not just due to discontent with Bush and the Obama Effect: emigres from Los Angeles are swelling Ventura County’s ranks as more and more Angelenos come to appreciate this oft-overlooked area’s natural advantages.  The path to victory for Republicans like Tony Strickland is only going to get steeper from here.

Second, Obama’s first term will likely end up going smoothly with good approval ratings, or very poorly with low approval ratings.  Given the precarious, sour  and moody state of the nation, we’re unlikely to see an apathetic, middling result.  As a consequence, the next presidential election is unlikely to be a close contest one way or another.  Our poor experiences in California this year will likely have taught us that we need to Stay for Change–especially if a Democratic Governor is elected in  2010, putting GOP legislators as the biggest remaining obstacle to real change in California.

But Tony’s third and biggest problem is that as an incumbent he will have 4-year voting record in the State Senate.  Tony’s campaign this year was built entirely on lies; so much so, in fact, that I can say with all sincerity that he ran the most dishonest campaign I’ve personally had the misfortune of seeing up close.  He will no longer be able to run as an “independent”, as all his yard signs and mailers deceitfully claimed.  He will no longer be able to claim “green” credentials by posing as an alternative energy entrepreneur.  He will simply be the incumbent: the Republican incumbent, and with a track record to boot.

So assuming that demography is destiny and the remaining ballots sort themselves out as poorly as we expect, it’s not the end of the road, but merely the beginning.  The Stricklands will have earned themselves 2 to 4 years of respite through dishonest campaigning.  More Democratic voters, increased intensity, and an unequivocal track record will see them on their way out of Sacramento in a few short years.

From today’s Beyond Chron.

When SF City Attorney Dennis Herrera sued last week to overrule Proposition 8, I didn’t expect him to prevail – as much as I appreciated him trying.  As wrong as it sounds, the initiative process allows a bare majority of California voters to change our state constitution – and with other states having passed similar marriage amendments, I couldn’t see how the courts would repeal it.  But after having read Herrera’s well-written brief and done some legal research, I am now more optimistic that justice will prevail.  Prop 8 was not your typical “amendment” that merely tinkers with the California Constitution.  It was a drastic revision that deprives a “suspect class” (gays and lesbians) of a fundamental right under equal protection.  And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities.  While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time.  And unlike many states, California has explicitly found sexual orientation to be a “suspect class.”  If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of “change.”

It’s been hard for me to be happy about last week’s Election results – despite Barack Obama’s landslide victory, a more progressive Congress and a good night locally for San Francisco progressives.  People are angry and depressed about the passage of Proposition 8 – because unlike other states where gay couples had no marriage rights, here the right has just been stripped away.  And if there was one state where we felt we could defeat such an amendment at the ballot box, it would be California.

It doesn’t seem right that a bare majority of voters can change the Constitution by taking away peoples’ rights.  The purpose behind California’s initiative process was to allow voters to pass laws when the state legislature wouldn’t act – giving the “power of the people” a sovereign role.  But even a Constitutional amendment just requires a majority vote – with the only “protection” being a higher signature threshold than an initiative statute.  However, as Mayor Gavin Newsom said after Prop 8 passed, “protections in the Constitution have always been there to respect the rights of the minority versus popular opinion.”

Amending the federal Constitution is far more difficult than the California Constitution – as we don’t have a federal initiative process, and you need a two-thirds vote of the U.S. Senate and three-fourths of state legislatures to ratify it.  The Federal Marriage Amendment that George Bush championed in 2004 was never about amending the Constitution – because the right-wing couldn’t realistically get a supermajority to make it happen.  It was just a political ploy to get Bush re-elected.  Karl Rove knew a majority of the country doesn’t support gay marriage, making it the perfect “wedge” issue to accomplish a short-term goal.

Likewise, Massachusetts has a higher threshold for changing its Constitution.  You can’t just gather signatures and then let the people decide – the state legislature has to formally vote to put it on the ballot.  After the Massachusetts Court ruled for marriage equality in 2004, the right wing tried to launch a Constitutional amendment.  But the Democratic state legislature refused to put it on the ballot – and as more and more gay couples got married (and people saw that the sky didn’t fall), public opinion evolved to support it.

But Dennis Herrera’s lawsuit on behalf of the City and County of San Francisco – which Santa Clara and Los Angeles Counties have now joined – highlights a critical distinction in California’s Constitution that gives me hope.  Even if voters pass a Constitutional Amendment, the courts can still decide if it was merely an “amendment” – or a substantive “revision.”  And if it was a “revision,” voter approval by a simple majority is not enough – it also requires an okay by the state legislature (which probably wouldn’t happen), or a constitutional convention.  Why the distinction?  Because mere “amendments” tinker around the edges; “revisions” are far more fundamental changes.

And the Courts have thrown out such changes to the Constitution as “revisions” under the right circumstances.

In June 1990, California voters passed Proposition 115 (the Crime Victims Justice Reform Act) – a conservative “law-and-order” measure that said certain criminal defendants would not have more rights than provided by the U.S. Constitution.  Prop 115 had passed as an amendment, but the state Supreme Court called it a “revision.”  Why?  Because, in Raven v. Deukmeijan (1990), they said Prop 115 had “such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.”  Prop 115 adversely affected a defendant’s right to due process, equal protection, assistance of counsel, and the standards for “cruel and unusual punishment” – which effectively made it a “revision.”

Likewise, Prop 8 is a drastic “revision” (if not moreso) because it violates equal protection for a minority group.

Last May, the California Supreme Court found that depriving same-sex couples the right to marry violated equal protection – and that LGBT people are a “suspect class.”  A “suspect class” is a group that has suffered discrimination and needs protection.  The central purpose behind equal protection is to protect unpopular minorities from a political majority who could take away their rights.  You can’t simply change the Constitution by majority vote to take away the right of gay people to marry – because that right comes from the equal protection clause.  As Herrera wrote in his brief, “without a judiciary that has the final word on equal protection, there simply is no such thing as equal protection.”

Of course, not all Constitutional amendments are “revisions.”  California’s term limits law, for example, significantly altered how long members of the legislature can stay in office – but it did not violate the foundational nature of our Constitution.  Even a Proposition that said the death penalty was not “cruel and unusual punishment” (which, like in this case, overruled a Supreme Court decision) was deemed acceptable – because one of the standards for determining what is “cruel and unusual” punishment is public opinion.  On the other hand, what do you do when the people pass an amendment that violates the fundamental rights of a minority?

What if in the aftermath of September 11th, California voted to change its Constitution to require all Muslims to travel with passes?  What if California – afraid that undocumented workers were “invading” the state – voted to expel Latino kids from school, or deny them medical treatment?  That would violate equal protection, but would it be constitutional just because proponents gathered the minimum number of signatures necessary so that it was a “constitutional amendment” (rather than a statute)?  It isn’t hard to see that, without some safeguards in place, our state’s equal protection clause can become Swiss cheese.

Granted, I was at first skeptical that Prop 8 could be found unconstitutional – because after all, a lot of other states have passed similar marriage amendments through the initiative process.  Hasn’t this been tried before, and weren’t those amendments upheld?

Yes, but the facts are distinguishable.  Alaska’s voter-approved amendment, for example, was upheld – but Alaska can’t just change its constitution by collecting signatures and having a bare majority of voters approve it.  Like Massachusetts, you need two-thirds of the legislature to put it on the ballot – which makes Alaska’s “amendments” the functional equivalent of a “revision” in California.  So it has some minimal safeguards for initiatives that California does not have.  Moreover, Alaska’s Constitution does not recognize LGBT people to be a “suspect class” – so the violation under equal protection was harder to prove.

In Oregon, however, the state Supreme Court upheld its marriage amendment – and even rejected the notion that it was a fundamental “revision” to their state’s Constitution.  But that ruling, Martinez v. Kulongoski (2008), was flawed – and our state Supreme Court would be wise not to follow it.  In Martinez, the Oregon Court almost exclusively relied on a decision from 1994 that found an anti-gay measure to be an “amendment” rather than a “revision.”  If you read the case, it actually gave the subject short shrift.

But a lot has changed in the field of gay rights since 1994 – as far as court rulings are concerned – that should influence the Prop 8 ruling.  In Romer v. Evans (1996), the U.S. Supreme Court threw out a Colorado proposition that repealed anti-discrimination laws protecting gays and lesbians – because they said hate is not a “rational basis” for violating equal protection.  In Lawrence v. Texas (2003), the U.S. Supreme Court overturned Texas’ sodomy ban – because the right to privacy extends to consensual sex (it also said you can’t make it illegal for gay people while making it legal for straights.)  The Martinez court ignored both cases.

Finally, California’s marriage ruling on May 15th was not just remarkable for granting marriage rights to same-sex couples.  The most important part of the decision was that gays and lesbians were deemed a “suspect” class – and discrimination based on sexual orientation must pass strict scrutiny.  Even if voters later passed Prop 8 to eliminate the right to marry, the other parts of the decision stand – meaning that to discriminate against gays violates equal protection of the highest order.  The Supreme Court must overrule Prop 8 – asserting that a simple vote of the people just can’t do it.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.

I will be on KRXA 540 AM at 8 this morning to discuss this and other issues in California politics

In 1960 the state of California made a promise. All students who met eligibility requirements would be given a place in the state’s higher education system, and that education would be provided free of charge (although students would be responsible for room and board and books, they were not to be charged for the cost of instruction). Sure, that place might be at a UC, or a CSU, but under Governor Pat Brown both Republicans and Democrats agreed that for the good of the state, its economy, and its future, affordable higher education had to be guaranteed.

That was the essence of the 1960 Master Plan for Higher Education and it perhaps more than any other project of the Pat Brown era was responsible for catapulting California to global economic leadership, creating broadly shared prosperity, and making this state a better place to live. Without it we would be much worse off than we are today.

The Master Plan has been betrayed before, starting with Governor Ronald Reagan’s 1967 student fee hikes. Over the decades the promise of free college has eroded, but at least those who met the eligibility requirements could get a place. In recent years that opportunity became more remote and more dependent on debt, but at least it was there.

Under Arnold Schwarzenegger the slow but steady decline of California higher education has dramatically accelerated. Arnold has shown nothing but contempt for higher ed and no interest whatsoever in upholding the promises of the Master Plan or securing a prosperous future for all Californians.

So it comes as no surprise that he is again targeting higher ed for massive cuts, and cuts that are leading the Cal State system to turn away eligible freshmen for the first time ever:

Under one of the cost-cutting proposals, the CSU system may turn away eligible freshmen for the first time in its history. If the proposal from Chancellor Charles Reed is enacted, schools will give priority to freshmen in their “service area,” meaning CSUMB would first admit Monterey County residents. Students from outside the county would be put on a waiting list.

Institutions of higher education statewide stand to face a staggering $464.1 million in combined cuts under the governor’s plan to plug an $11 billion drop in state revenue projections.

During a recession, you want students to attend college. Regardless of age, students get education and job training that will help them grow the economy upon graduation. It is a tried and true form of economic stimulus. Arnold’s cuts are going to forestall this:

The community college system, which would be hardest hit by the cuts, would lose about 10 percent of its state funding under the governor’s plan….

“When unemployment goes up, enrollment at community colleges goes up,” Pyer said. “So we’ll have more students, and we won’t get money for that.”

Tough economic times also force some four-year students to drop down to two-year institutions, Pyer said.

The proposed budget cuts are not the only fiscal adjustment to education bouncing around Sacramento. The state Legislative Analyst’s Office has proposed fee increases that would raise community college tuition by 50 percent by fall 2009…

“It’s the community college’s feeling that it’s the worst time to raise fees when the economy is in a slump,” said Monterey Peninsula College spokesman Rich Montori.

Disclosure: I teach part-time at MPC but do not anticipate being affected by any of these cuts.

Community college cuts are especially pernicious. These schools are the primary location where working-class and lower middle-class Californians get a chance at upward mobility. Even small fee increases can put college and work skills further out of reach, especially since most of these students already work full-time.

As this budget crisis unfolds it is becoming clear to everyone that what is at stake is more than just a fiscal plan for the state government. Our very future is at risk here. I don’t know how to put it more clearly. If these cuts continue, if this overall situation is not reversed, California will simply not be sustainable for most of its residents. The prosperity of the 20th century will have given way to the aristocracy and inequality of the 21st.

Are we going to let the Yacht Party get away with it?