2020 is a bumper year for ballot language lawsuits in California

It's summer in an election year, and that means Alex Padilla is getting sued -- a lot. California's secretary of state was a named defendant in at least 18 complaints in Sacramento County Superior Court this year, including 11 filed during the last 10 days of July. Padilla is arguably an innocent bystander in many of these cases. Most plaintiffs object to the actions of another man: Attorney General Xavier Becerra, whose office is responsible for writing much of the language voters will see on the ballot and election guides when they decide on initiatives. Supporters and opponents of propositions are objecting to Becerra's descriptions of what the initiatives will do.

Other cases have challenged the arguments submitted by their opponents to be seen in voter materials or language approved by the Legislative Analyst's Office. Padilla is also frequently named in cases that have nothing to do with initiative language, such as cases involving a single candidate or a non-election matter.

But there's no question 2020 is shaping up to be a very busy year in the courtroom of Sacramento Superior Court Judge Timothy M. Frawley, who often hears challenges involving the attorney general's ballot language. Of 12 initiatives on the November ballot, at least six are the subject of ballot language litigation.

"I've been doing this almost 30 years, and I don't recall there being six," said Thomas W. Hiltachk, managing partner with Bell, McAndrews & Hiltachk LLP, the leading California political law firm on the Republican side.

Hiltachk's firm has filed multiple cases this year, including ones related to Proposition 15, the so-called "split roll" measure that would remove the protection of Proposition 13 tax limitations for properties used commercially.

Proposition 15 appears to be the runaway winner of the most litigious ballot measure of the year, with cases filed by both opponents and supporters.

These suits generally concern three items written by Becerra's office. Much of the attention often goes to the title and summary, the shortest and longest text his office writes. But Hiltachk said he focuses more on the 75-word summary of the initiative printed on ballots, "the last thing seen by any voter." He noted the burden of proof in these cases is high, generally requiring showing a statement is objectively false and not just a matter of opinion.

California's political history is filled with examples of campaigns that won in court but lost at the ballot box. In 2018, opponents of Proposition 70, limiting how greenhouse gas funds could be used, won ballot language concessions but not votes.

In 2016, supporters of Proposition 60, demanding the use of condoms in adult films, forced language changes in court but lost in November. The same scenario played out for at least two initiatives in 2012, another contentious year in ballot argument cases.

But that's not the whole story, according to campaign professionals. Hilary McLean, a partner with the Democratic-leaning communications firm ALZA Strategies LLC, said campaigns often view these cases as defensive measures, even when they're the plaintiffs.

A court case isn't going to turn a losing initiative into a winning one, she said. But her clients don't want to be the campaign that loses a winnable initiative race where the language turns against them.

"It's really the only time you can have a legal check on the other side's characterization of an initiative," McLean said. "There's often a barrage of advertising on both sides, but for many voters the only thing they're going to pay attention to right before they vote is what's in the ballot pamphlet. So the stakes are pretty high."

Hiltachk echoed these thoughts, noting litigation can be cheaper than spending millions to counteract a negative message.

"If a ballot label is skewed to one side of the other, you've created an advantage for one side which has to be overcome by the other side," he said. "When I say overcome, that means money. You overcome that by advertising."

Proposition 34, a 2012 initiative that would have banned the death penalty, may provide an example of a court case making a difference. Proponents sued to change ballot wording, but Frawley rejected their contention that the wording should state the initiative would "redirect" more than $100 million in law enforcement money toward solving crimes. Proposition 34 went on to lose by four percentage points.

One frequent plaintiff in these cases is Jon Coupal, president of the Howard Jarvis Taxpayers Association. Hiltachk represents him in a challenge to the Proposition 15 language.

He cited Propositioi 6 as another possible example of how ballot language may have played a role. The 2018 initiative would have rolled back a gas tax increase. Proponents challenged Becerra's language, saying it described the tax rollback as tax increase. The proponents won a first round in court but lost on appeal and Becerra's description remained on the ballot.

Voters rejected the tax rollback measure by more than 13 points.

Coupal said that campaign helped push more people on the conservative side to begin to push for taking writing ballot language out of the attorney general's hands and placing it with someone not in a partisan office, such as the legislative analyst.

One thing that is clear, he added: These cases will keep coming.

"This is the Old West," Coupal said. "We don't strap on six-shooters, we strap on lawyers."