When state Attorney General Kamala Harris issued a statement Wednesday indicating that she would ask a court to allow her to ignore a proposed anti-gay ballot measure, legal experts I talked to scoffed.
When asked about Harris' efforts to avoid writing the ballot title and summary for the "Sodomite Suppression Act," some election law experts expressed doubt.
"It's generally not seen as discretionary to write the title and summary," said Rick Hasen of UC Irvine Law School. "You can't just deny it on grounds that it's unconstitutional," which the proposed ballot measure clearly is.
Among other things, the ballot measure would fine people $1 million each time they promoted "sodomistic propaganda," for good measure adding that the offender should get "imprisonment up to 10 years, and/or (be) expelled from the boundaries of the state of California for up to life."
Think that's crazy? There's also this: Anyone who "willingly touches another person of the same gender for purposes of sexual gratification be put to death by bullets to the head or by any other convenient method."
"It's better to write the ballot title and summary because a court orders you to than to do it voluntarily," said Hasen. In other words, it's good politics to be able to say you tried to keep it off the ballot.
But Bay Area election lawyer Jim Parrinello said: Not so fast. At first, he was skeptical of legal maneuvers to keep the anti-gay measure off the ballot. "I suppose I could cobble together a legal reasoning," Parrinello said, while adding he could more easily imagine a decision denying Harris' request.
But upon further reflection, Parrinello thought Harris might have some legal ground to stand on. He cites two California cases where courts allowed local election officials to ignore local ballot measures submitted for title and summary.
One was a 2006-08 case from Ojai, where City Attorney Monte L. Widders did just what the California attorney general did this week -- ask for judicial permission relieving him of his duty to write the titles and summaries. In that instance, the proposals involved chain stores and affordable housing. The lower court denied Widders' request to ignore the measures, but an appellate court reversed it in favor of the city attorney.
The other case Parrinello cites is from 1996-99 in Shasta County. In that one, county counsel Karen Keating Jahr sought relief from writing the ballot title and summary of a measure allowing voters to adjust the salaries of Shasta County's Board of Supervisors. The trial court sided with Jahr's contention that she did not have to write a title and summary of a ballot measure that was clearly unconstitutional.
Harris' request is now before a Superior Court judge in Sacramento. No matter the outcome, it's unclear whether the Orange County attorney pushing the measure will be able to collect the necessary signatures to place it on the 2016 ballot. And even then, voters would not likely support it. And if they did, it would no doubt be declared unconstitutional.
Isn't direct democracy grand?