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SB 1272 (NKA Proposition 49) - The Secretary of State's Pretend Invitation

Last week, I wrote that Governor Brown had allowed SB 1272 to become law without his signature.  To say that SB 1272 became law is an hyperbole because, as Governor Brown observed, the bill "has no legal effect whatsoever".  The bill, authored by Senator Ted Lieu, calls for an advisory vote on whether the United States Congress and California Legislature should approve an amendment to the U.S. Constitution overturning the United States Supreme Court decision in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010).   SB 1272 will appear on the ballot as Proposition 49.

When a ballot measure is presented to the voters in California, the ballot pamphlet includes an argument in favor of the measure, an argument against the measure and rebuttals to those arguments.  On July 16, 2014, the Secretary of State's office issued this press release inviting the submission of ballot arguments and rebuttals.  Upon examination, however, the Secretary of State's invitation doesn't appear to have been a serious attempt to elicit public submissions.

First, the timing was outrageously short.  The Secretary of State fixed the deadline for submission of arguments at  5:00 p.m. on July 18, 2014.  When I called the Secretary of State's press office, I was told that it did not issue the press release until after 5:00 p.m. on July 16, meaning that the general public was given less than 48 hours notice!  In any event, it is unclear why the the Secretary of State's office went through the charade of publicly inviting comments when it seemingly had decided to apply the Election Code provisions applicable to legislative measures.  Those statutes give members of the legislature the right to submit the arguments in the first instance and the public only has the opportunity to submit arguments when the members fail to do so.  Cal. Elec. Code §§ 9041, 9042 & 9044.  As it turns out, the ballot arguments were submitted by members of the legislature (and persons apparently appointed by those members).  The argument in favor is here and the argument against is here.

The bottom line is that the Secretary of State's office either wittingly or unwittingly tried to create the appearance of inviting public participation but the reality is that the public had no reasonable opportunity of submitting arguments.  When I submitted written questions to the Secretary of State's office about this patently unfair process, I was told that it will "refrain" from "discussing related details outside of court" due to pending litigation concerning the measure.  That litigation is Howard Jarvis Taxpayers Association et al. v. Bowen, as Secretary of State, etc. which was filed on July 23, 2014 directly in the Third District Court of Appeal (Case Number C076928).

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30172DBAB0084D3A8F39D7AF0A8E79BC.ashx Keith Paul Bishop
Partner at Allen Matkins
(949) 353-6328
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