High court to decide on state-splitting initiative’s fate

Will the California Supreme Court allow the Three Californias initiative onto the fall ballot?

Attorneys for billionaire Silicon Valley investor Tim Draper must file a reply brief with the state high court today. This will address plaintiffs' contentions that Proposition 9 so clearly violates the state Constitution that it should be stricken before it ever reaches voters. Planning and Conservation League v. Padilla, S249859 (Cal. Sup. Ct., filed July 9, 2018).

Proposition 9 would split the state into three states with roughly equal populations, though with very different demographics and land areas. Attorneys and legal scholars have widely criticized the measure as having legal and constitutional conflicts that could make it very difficult to implement if passed.

In the short term, the court could toss the challenge or schedule expedited oral arguments. Or it could agree to take the case without deciding it before Election Day.

The complaint devotes much of its 68 pages to arguing the court has a duty to not wait.

"The changes in our state's basic governmental framework are so profound that, given the extensive uncertainties about the next steps Proposition 9 contemplates following voter approval, this court's post-election review would inevitably be carried out against a background of uncertainties and unresolved questions," the brief argues.

Los Angeles attorney Carlyle W. Hall Jr. is leading the Planning and Conservation League's case. He said they opted to file directly to the Supreme Court rather than a lower court because of the tight timeline. Secretary of State Alex Padilla must send official voting materials for the general election to the printer by Aug. 13.

"To add a case to their docket like this is asking them to do something they don't normally do," Hall said. "We have the burden to convince them this is something they should go out of their way to do. The other side's point is usually 'Don't go out of your way; we can do all this later.'"

So far the court is moving quickly. The plaintiffs reply to Draper's brief is due on Monday in time for the court to consider the case at its regular Wednesday conference.

The Yes on Prop. 9 campaign released a statement late Thursday with the headline "Why Won't They Let Californians Vote?" and criticized the initiative's opponents as the "Sacramento status quo."

"Why don't they want Californians to decide what is best for themselves, their children and their future?" the statement said. "It's simple: Trial attorneys, unions, special interests and political influence-peddlers are afraid."

The case information posted online by the high court did not list an attorney of record for the campaign. The initiative was written by Bell, McAndrews & Hiltachk LLP, a major Sacramento political law firm with mainly Republican clients. Its attorneys did not return a call seeking comment. A spokesperson for the Prop. 9 campaign could not immediately confirm if the firm was handling the case.

"There should be a pretty strong argument for excluding this from the ballot altogether, but I would like to see what the other side's arguments are," said Vikram D. Amar.

The dean of the University of Illinois College of Law, Amar has written several articles critical of the measure. But he added the initiative's poor poll numbers so far could play a factor in the court's decision. An April SurveyUSA poll found Proposition 9 had just 17 percent support.

"Courts are sometimes reluctant to step on theory they will never have to if they just wait for the problem to take care of itself," Amar said.

U.C. Hastings Law Professor Michael Salerno said he also thought it was likely the court would remove Proposition 9. He called the measure "bizarre" and a "legal impossibility" that could never be implemented.

Both legal scholars echoed some of the arguments in the complaint. The main contention of opponents is Draper is illegally attempting to amend -- and effectively abolish -- the state constitution by means of a statutory initiative. In fact, in 2016 Draper tried to qualify a constitutional initiative to split California into six states but missed the higher signature threshold.

There are other potential issues as well, including possible conflicts with the U.S. Constitution. It is also possible the court could interpret Proposition 9 as an "advisory" measure that simply urges the Legislature to do something. In previous cases, it has said advisory initiatives are barred from the ballot unless placed there by the Legislature itself.

Salerno said this and other recent initiative attempts by wealthy companies and individuals show the process has been hijacked.

"The progressives at the turn of the 20th Century wanted the people to decide," Salerno said. "This is not what the proponents of the initiative process had in mind."