In Prop. 8 Ruling’s Wake, Initiative Sponsors Take Protective Steps

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Mindful of the Supreme Court ruling against Proposition 8, California initiative sponsors build in language so they can defend their measures if the state does not.

SAN FRANCISCO — Anxious about last summer's ruling on Proposition 8, sponsors of California ballot measures are going to considerable lengths to ensure they will be able to defend them if the state doesn't.

Nearly 1 in 4 proposed initiatives include language intended to skirt the ruling and avoid having a measure overturned because of antipathy by state officials, a review of the measures showed.

The proposal topics are as varied as public pensions and Internet privacy, each armed with clauses aimed at turning sponsors into semi-public officials able to defend the measures if the state refuses.

"When the public passes a ballot measure, it needs to make sure there is someone there to defend it," said Jamie Court, president of Consumer Watchdog and an initiative sponsor. "Prop. 8 showed that if there is an unpopular measure, then voters won't have a seat in the courtroom."

The Supreme Court decision on the 2008 same-sex marriage ban — a victory for gay rights — has left ballot initiatives vulnerable in federal court.

The high court said sponsors may not appeal a federal judge's order against an initiative, even if state officials refuse to defend it. That enables a single federal judge to overturn a law passed by voters.

Whether the efforts succeed in getting around the ruling remains to be seen.

There have been only two occasions in which California officials have refused to defend ballot measures, and a third in which the state declined to appeal a ruling that struck down an initiative. One involved race, another immigration and the third gay rights.

But the prominence of the Proposition 8 battle and ongoing fights in other states to overturn marriage bans have frightened some initiative backers.

Six Democratic attorneys general around the country have refused to defend their state bans. In a speech last month, U.S. Atty. Gen. Eric Holder told an association of state attorneys general that they were not obligated to defend laws they believed discriminate in violation of the Constitution.

UC Davis law professor Vikram Amar said the issue arises primarily with highly contentious measures or when voter sentiment has changed by the time a law is challenged in federal court.

"When it does happen, it matters a lot," Amar said. "We live in a world of hyper-partisanship and hyper-polarization, so this might happen more frequently."

Thomas Hiltachk, an election lawyer who represents measure sponsors, agreed that sponsors might have reason to worry.

"If California is going to be under one-party control for the foreseeable future, there will be ideas that resonate with the public that don't resonate with the elected representatives," he said

The Supreme Court ruling let stand a federal trial judge's ruling against Proposition 8 because state officials refused to appeal it. The proponents of the 2008 same-sex marriage ban did appeal, but the high court ruled 5 to 4 that they were not authorized to step into the shoes of elected state officials to do so.

The court said only the state, not sponsors of ballot measures, have standing to defend them in federal court.

State law is different. Sponsors are permitted to defend measures in state court. But some fights wind up in federal court when issues of federal law, including the U.S. Constitution, are at stake.

In trying to protect their measures, sponsors are resorting to lengthy provisions tacked on at the end of the proposed laws — and they are taking language directly from the Proposition 8 ruling:

In denying standing to the Proposition 8 sponsors, the Supreme Court said they had not been designated as "agents of the state." A proposed ballot measure on legalizing marijuana specifies that the sponsors "act as agents of the people and the state."

The Supreme Court said the Proposition 8 proponents had "taken no oath of office." A charter school measure directs the proponents to take an oath of office to defend it.

The Supreme Court said ballot sponsors have no "personal stake" in their measures and no "formal" authority to defend them. A proposal to overhaul the structure of the Legislature states that proponents have a "direct and personal stake" in the measure and "formal authority" to defend it.

A proposed ballot measure to end seniority protections for teachers requires the attorney general to appoint an independent counsel to defend the law if state officials refuse. The state would be required to pay the fees and costs of that lawyer.

A proposed measure to divide California into six states goes further, giving proponents the right to supervise any defense by the attorney general and hire an outside lawyer to defend the measure if the attorney general is not doing a good job.

Legal scholars point out that a strict reading of the Supreme Court's Proposition 8 ruling suggests that such provisions might not succeed. "There is no clear answer" on whether they will work, said UC Irvine law school Dean Erwin Chemerinsky. But they also agree that they are worth a try.

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