The Special Election Just Got Harder

One advantage the Legislature has had for years in referring ballot measures directly to the people is that lawmakers were not subject to any standard of impartiality. They could, and often did, write a sunny “official” description of their own referred measures for official ballot materials. The hope was to encourage some number of extra votes by casting such measures in a positive light.

That’s in the past tense now, though, due to a court ruling last week. And that change could jeopardize legislatively referred measures intended for the much-discussed June 2011 special election ballot.

Without the power to control the framing of the special-election measures, the Legislature and Gov. Brown could find passage just marginally more difficult in an election that could be extremely close.  

The Court of Appeals ruled late last week that the Legislature cannot supplant the Attorney General, who is normally charged with writing a fair and “impartial” description of statewide ballot measures. From now on, no more advocacy language from legislators can appear in the official title & summary.

The case came out of the successful Nov. 2008 high-speed rail bond measure, whose title and summary were pointedly upbeat. For instance, the title was the “Safe, Reliable High-Speed Passenger Train Bond Act,” and the first bullet read, “Provides long-distance commuters with a safe, convenient, affordable, and reliable alternative to driving and high gas prices.” (For more see here:

The measure won (52%-48%), and that victory won’t be revisited due to this ruling, but the appeals court found that the Legislature’s practice of writing such chipper language for its own ballot measures violated the law controlling initiative descriptions. The Legislature has routinely exempted itself from that law in the course of stipulating the language to appear as the title and summary. But those days are over.

Going forward, every measure, whether it’s put on the ballot by citizens or legislators, will now need to have a neutral ballot title, summary and label prepared by the AG. And that could make the much-discussed June 2011 special election harder for Gov. Brown and his slate of initiatives.

To see why this matters, look back only to the most recent statewide special election. In May 2009, the Legislature put a slate of special measures on the ballot, most related to the budget. I worked against two of those, Props. 1D & 1E, which sought to cut early-childhood programs and mental health services that had previously been created by voter enactments.

Suffice it to say that the title and summary descriptions written by the Legislature skipped over a lot of the details, like the fact that we were being asked to amend past voter initiatives. The summaries made these cuts sound painless and even, in some ways, made the proposals sound like efforts to ensure funding for important programs, not to cut programs.

Hoping to find votes, the authors of these summaries had inverted the meaning of the actual proposals to make them sound good. For those of us hoping to persuade voters to stop the cuts, the official language was maddening.

Opponents of 1D were not able to challenge the ballot description, but the 1E opponents did. They feared that the initial summary language would falsely convey to voters that 1E would protect and enhance children’s mental health services, instead of cutting significant mental health services. But it was unclear whether we could win a court fight. If the court were to find that the Legislature was free to exempt itself from the requirement for an impartial title and summary, 1E opponents would have been forced to accept the language as initially drafted

Before their case went to a judge, attorneys for the Legislature and the 1E opponents worked out a settlement. The revised summary was better. But settlements get forced when both sides are unsure of the outcome. The 1E opponents took half a loaf rather than risk going with the first draft.

There was more of a titanic battle around that year’s Prop. 1A ballot description, a fight over the nature of the tax increases proposed therein and how they were tied to a spending cap. Opponents of 1A won a couple of tweaks to the language, but mostly lost their effort to recast 1A in a more neutral/negative light. In their case, the court upheld the basic right of the Legislature to put almost anything they wanted into the title & summary.

Now, all of the budget measures in May 2009 went down to defeat by about 2-to-1, so you can argue that any puffery put into ballot materials by the Legislature was a nonfactor. But in a close race, everything matters. The June 2011 special election – if it comes together – was surely conceived with one big assumption: whatever the Legislature puts on the ballot, it will control the framing of those measures in the official ballot materials. No more.

The Court of Appeals decision in this case is remarkably simple to read and grasp. It’s online here:…

The gist of the ruling is this: The requirement for the AG to write an impartial summary of “each measure” on the statewide ballot was itself instated by a ballot measure – the Political Reform Act (PRA) of 1974. Even the Legislature can’t ignore the statutory requirements of a ballot measure enacted by the people. So the appeals court found that the Legislature could not exempt itself from those requirements. The fact that legislators were only doing it for measures they had drafted themselves was immaterial. The PRA says it’s the AG’s job – period.

This is a simpler Article II case than even many critics of this longstanding legislative practice seem to have imagined.

The bottom line for June 2011 now is that any legislatively referred measure must go to the AG for a description, and the content of that description will be subject to litigation on any claim that the language may be prejudicial.

That could be a big negative for some of the issues that have been rumored to be part of a new special-election package, including possible repeats of 2009’s 1D & 1E to cut children’s services or mental health care. The job of selling the special election just got harder.

2 thoughts on “The Special Election Just Got Harder”

  1. Prop 8 had a fight over its title, with then Jerry Brown winning over the DOM’s prejudicial title.

    I would hope that with Kamala Harris as Attorney General, we’re not going to see “impartial” titles like “A Ballot Proposition to Institute Job Killing Taxes on our Noble Leaders of Industry” or the like.  More like “A Ballot Proposition to restore equity in taxes paid by corporations.”

  2. There are often battles over the title/summary for citizen-initiated measures. There you are challenging the AG’s use of language and/or alleged abuse of discretion. It was much, much harder to challenge the language written by the Legislature because, in theory, they always exempted themselves from any standard of impartiality. That’s why 2009’s 1A wound up with such minimal changes.

    Now the AG will propose language on all inits. and the battles over Legislative referrals would be subject to the same standards of impartiality that citizen measures have always been…

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