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C060441

COURT OF APPEAL OF THE STATE OF CALIFORNIA


THIRD APPELLATE DISTRICT

HOWARD JARVIS TAXPAYERS ASSOCIATION, ET AL.,

Petitioners and Appellants,

v.

DEBRA BOWEN, SECRETARY OF STATE, ET AL.,

Respondents and Respondents.

Appeal from a Judgment by the Superior Court, Sacramento County


Case No. 34-2008-80000048-CU-WM-GDS, Hon. Michael P. Kenny

APPELLANTS’ OPENING BRIEF

Trevor A. Grimm, SBN 34258


Jonathan M. Coupal, SBN 107815
Timothy A. Bittle, SBN 112300
Howard Jarvis Taxpayers Foundation
921 Eleventh Street, Suite 1201
Sacramento, CA 95814
Telephone: (916) 444-9950
Facsimile: (916) 444-9823
Attorneys for Appellants
RULE 8.204(a)(2) STATEMENT
This case of first impression avers that when the State Legislature is the
proponent of a measure on the ballot, it has a conflict of interest which, under
article II, §§ 3 and 4 of the state constitution, disqualifies it from preparing the
impartial descriptions and analyses for the voters. In this case, the Legislature
wrote the ballot label, title and summary for Proposition 1A, the high-speed
rail bond, on the November 2008 statewide ballot.
This action was brought as an election writ during the measure’s
specially shortened 8-day public examination period. Petitioners sought an
order that the Legislature, being prohibited from drafting the analyses for its
own measure, must allow the Attorney General, or assign someone else who
is impartial, to write the ballot label, title and summary.
After an expedited hearing, the Judge, applying a deferential standard
of review, ordered certain false statements corrected in the Legislature’s ballot
materials, but ruled against petitioners on the larger question of whether the
Legislature is allowed to write the ballot materials. Judgment was entered on
September 3, 2008. Petitioners timely appealed. The judgment is now final.
ISSUES ON APPEAL
1. Under article II, §§ 3 and 4, is it constitutionally permissible for
the Legislature, when it is the proponent of a measure, to dictate the wording
of the impartial information that the voters will see for that measure?
2. If so, should the standard of judicial review for that wording be
higher than the deferential standard applied by the Superior Court?
STATEMENT OF FACTS
In the waning hours of the 2008 legislative session, AB 3034 was
gutted, amended, and jammed through an abbreviated hearing and concurrence
process to place Proposition 1A on the November 4, 2008, ballot. See Bill
History, Clerk’s Transcript (“CT”) at 121.

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Proposition 1A was a $9.95 billion bond proposal to provide seed
money for the construction of high-speed rail lines on one or more optional
routes listed in the measure. See AB 3034, CT at 85:30.1
Ordinarily, the Attorney General prepares an impartial ballot label, and
ballot title and summary for any statewide measure presented to the voters,
including any measure presented by the Legislature. Elec. Code §§ 9051,
9086, 13280, 13281; Gov. Code § 88002.
In the rare case where the Attorney General has a conflict of interest
because he authored the measure, Legislative Counsel assumes responsibility
for preparing the impartial ballot label, title and summary. Elec. Code § 9003.
In the bill placing Proposition 1A on the ballot, the Legislature wrote
its own ballot label, title and summary, and “notwithstanding any other
provision of law,” prohibited the Attorney General from revising them or
preparing his own. The bill also required the Secretary of State “not-
withstanding any other provision of law,” to print in the ballot only what the
Legislature had written. CT at 98:33, 99:12, 99:26, and 100:13.
According to the evidence before the Superior Court, this phenomenon
of the Legislature supplanting the Attorney General’s impartial analyses was
unprecedented in California’s long electoral history until quite recently. The
Legislature wrote the title and summary for a tax increase, Proposition 111, on
the June 1990 ballot. See Stats 1989, ch. 106, CT at 170. Another fourteen
years passed, and then the practice exploded. The Legislature wrote the ballot
label, and the title and summary for a bond to balance the state budget,
Proposition 57, on the March 2004 ballot. See Stats 2003, ch. 2, CT at 167.
In the next statewide election cycle, the Legislature placed three bond
proposals, Propositions 1B, 1C, and 1D, on the November 2006 ballot and

1
AB 3034 appears in its last-amended bill form, rather than chapter form
(which lacks line numbers), for ease of citation.

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wrote their ballot labels. See Stats 2006, ch. 25, 27, & 35, CT at 152, 155, &
160. In the next statewide election cycle, the Legislature wrote the ballot
label, title and summary for the high-speed rail bond at bar. At the very next
election, which is the May 2009 special election, the Legislature not only
wrote the ballot label, title and summary, but specified who could write the
argument against a proposition that triggers a $16 billion tax increase. (The
Court may judicially notice Case No. C061350, where the same parties are
litigating the May 2009 measure over the same issues.)
In the case at bar, the Legislature bent several rules to give its measure
an advantage. It required that its measure “be placed as the first ballot measure
on the November 4, 2008, general election ballot and ... be designated as
Proposition 1A.” CT at 93:29. It shortened the public examination and
challenge period from “not less than 20 days” (Gov. Code § 88006) to “not
more than eight days.” CT at 100:38. It reduced the opponents’ campaign time
from 131 days (Elec. Code § 9040) to only 70 days. CT at 121 (AB 3034
enrolled Aug. 26, 2008), 98:24 (“this act shall be submitted ... to the voters at
the November 4, 2008, general election”). It also expanded the word limit for
the ballot label from 20 words (Elec. Code § 13280) to over 100 words. CT
at 98:33. The biggest advantage taken by the Legislature, however, and the
one appellants herein have challenged, was suspending the Attorney General’s
authority to prepare the impartial ballot label, title and summary, and requiring
the use of its own proponent-authored materials instead.
After an expedited hearing, the Judge held the constitution does not
preclude the Legislature from dictating how the ballot’s impartial descriptions
and analyses will read for its own measure. CT at 235. Moreover, his Order
states, “The Court declines to read into the Constitution’s general terms a
specific requirement that Legislature-drafted ballot information must be totally
impartial.” Id. Thus the Judge deferred to the Legislature’s wording except

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where petitioners established “upon clear and convincing proof ... that the copy
in question [was] false [or] misleading.” CT at 234. He corrected two “clear
and convincing” falsehoods (CT at 230, 231), but denied any other relief.
The Proposition 1A bond was passed by the voters. Appellants are not
asking to have the election invalidated or issuance of the bond enjoined. They
simply want this Court to determine whether the Superior Court erred by not
issuing a writ directing the Legislature, in light of its conflict of interest, to
have the Attorney General or another disinterested party write the impartial
materials for the voters. A decision is important for future reference because
the issue is not only capable of repetition, it is obviously a growing trend.
Because election writs must be processed in extreme haste to accommodate the
printing of ballots (Elec. Code § 13314 (a)(2)), which often makes appellate
review infeasible, the issue may continue to evade review if this Court does
not address it now.
STANDARD OF REVIEW
“The scope of [appellate] review in an election contest is no different
from that in other appeals: [courts] review factual findings for substantial
evidence and questions of law de novo. The trial court determined that the
election contest raised pure questions of law and decided the case based on
briefing and argument without holding an evidentiary hearing. Therefore ...
review is de novo.” Greene v. Marin County Flood Control and Water Consv.
Dist. (2009) __ Cal.App.4th __ (slip opinion (attached to Request for Judicial
Notice) at 9); Silicon Valley Taxpayers Assn. v. Santa Clara County Open
Space Authority (2008) 44 Cal.4th 431, 448-49.
ARGUMENT
I
THE LEGISLATURE CANNOT WRITE THE
IMPARTIAL DESCRIPTIONS AND ANALYSES
FOR ITS OWN BALLOT MEASURES

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A. The Legislature Suspended Essential Checks
and Balances that Guarantee Ballot Neutrality

For every measure on the ballot, state law allows arguments for and
against the measure, and rebuttals. Elec. Code §§ 9041, 9042, 9069. The
arguments and rebuttals are expected to take sides, and there is no requirement
that they explain, or even disclose, the changes a measure will make to the law.
They appear in the Voter Information Guide above a warning: “Arguments
printed on this page are the opinions of the authors and have not been checked
for accuracy by any official agency.” Gov. Code § 88002. For voters, “[o]ne
difficulty with relying on ballot arguments is that they are stronger on political
rhetoric than on legal analysis.” Carlos v. Superior Court (1983) 35 Cal.3d
131, 143 n.11.
It is a different story, however, for the “Official Title and Summary”
and the measure’s label on the ballot itself. These materials are supposed to
contain neutral factual information that voters can rely on. California courts
have long recognized that the function of these impartial elements of the ballot
“is to inform the [voters] of the general purpose of the proposal, and to protect
[them] from being misled or imposed upon.” Clark v. Jordan (1936) 7 Cal.2d
248, 252 (title and summary provided to prospective signers of ballot petition).
California has established a framework of checks and balances to
ensure that voters do have reliable information, and that they are protected
from being misled or imposed upon. The constitution tasks the Attorney
General, an independently elected constitutional officer, with the duty of
preparing, for voter initiatives and legislative referenda, “a title and summary
of the measure.” Cal. Const., art. II, § 10; Gov. Code § 88002. He also
prepares a “ballot label ... contain[ing] a condensed statement in, where
possible, not more than 20 words of each measure to be voted on, accompanied
by the words ‘Yes’ and ‘No.’” Elec. Code § 13280.

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These materials must be “impartial” and present the “chief purposes and
points of the proposed measure” (Elec. Code § 9004) “in such language that
[they] shall neither be an argument, nor be likely to create prejudice, for or
against the proposed measure.” Elec. Code § 9051.
The responsibility for preparing the impartial information on the ballot
is entrusted to the Attorney General because, as the legal representative of the
People of California and “unbiased by the obligation of representing a
particular viewpoint” (City of Sacramento v. State of California (1984) 156
Cal.App.3d 182, 192) he is presumed to not take sides, but to be objective in
describing the measure and the changes in law it proposes. Songstad v.
Superior Court (2001) 93 Cal.App.4th 1202, 1209-10.
To protect voters against an interested party preparing the impartial
elements of the ballot, the law provides that should the Attorney General have
a conflict of interest because he himself is the proponent of a measure, the
Legislative Counsel must prepare the ballot label, title, and summary for that
measure. Elec. Code § 9003.
In this case, the Legislature suspended “any other provision of law”
designed to protect ballot neutrality. Unchecked by these restraints, the
Legislature rearranged the ballot order, halved the public’s review time and
campaign time, expanded its own word limit, and required that the ballot not
contain impartial descriptions and analyses prepared by the Attorney General,
but instead carry its own political solicitations in their place. In other words,
the very harm that Elections Code section 9003 is designed to guard against
(an interested party preparing the impartial elements of the ballot) was in this
case mandated by the Legislature. The advocacy of an interested party
appeared on the ballot masquerading as objective voter guidance to the
detriment of every voter who relied on it.

B. The Legislature is Presumed Biased,

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And its Materials Were in Fact Biased

The Legislature cannot claim to be impartial toward its own measure.


As the Supreme Court recently observed in Vargas v. City of Salinas (2009)
__ Cal.4th __ (slip opinion attached to Request for Judicial Notice), “it is
apparent that in many circumstances a public entity inevitably will ‘take sides’
on a ballot measure and not be ‘neutral’ with respect to its adoption. For
example, when a city council or county board of supervisors votes to place a
bond or tax measure before the voters, it generally is quite apparent that the
governmental entity supports the measure and believes it should be adopted by
the electorate.” Slip Op. at 43.2 In the same way, when the Legislature votes
to place a measure on the ballot, it “inevitably will ‘take sides’ ... and not be
‘neutral’ with respect to its adoption.”
The Legislature’s admiration for its own measure is evident in the
materials it required the Secretary of State to print for the high-speed rail bond.
The ballot label is a good illustration:
“To provide Californians a safe, convenient, affordable, and
reliable alternative to driving and high gas prices; to provide
good-paying jobs and improve California’s economy while
reducing air pollution, global warming greenhouse gases, and
our dependence on foreign oil, shall $9.95 billion in bonds be
issued to establish a clean, efficient high-speed train service
linking Southern California, the Sacramento/San Joaquin
Valley, and the San Francisco Bay Area, with at least 90
percent of bond funds spent for specific projects, with federal
and private matching funds required, and all bond funds
subject to independent audits?” CT at 98:37.

2
Unless noted otherwise, all emphasis is added.

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The promotional tenor of the Legislature’s material is seen in sharp
contrast when compared to a summary prepared by the Attorney General for
a similar rail bond. The Attorney General’s summary for Proposition 116 on
the 1990 Primary Election ballot read:
“Authorizes general obligation bond issue of $1,990,000,000
to provide funds principally for passenger and commuter rail
systems, with limited funds available for public mass transit
guideways, paratransit vehicles, bicycle and ferry facilities,
and railroad technology museum. Allocates certain amounts to
specified state and local entities through a grant program
administered by the California Transportation Commission.
Program will require some matching funds from local entities.
Appropriates money from state General Fund to pay off
bonds.” Appellants’ Request for Judicial Notice, Ex. 1.
In writing its label, the Legislature did more than inform; it advocated. The
wording is not impartial; it is argumentative. Indeed, the label virtually
mirrors the argument in favor of the measure, which read in part:
“Proposition 1A will bring Californians a safe, convenient,
affordable and reliable alternative to soaring gasoline prices,
freeway congestion, rising airfares, and fewer flights available.
It will reduce California’s dependence on foreign oil and
reduce greenhouse gases that cause global warming. ...
Matching private and federal funding to be identified BEFORE
state bond funds are spent. 90% of the bond funds to be spent
on system construction, not more studies, plans and
engineering activities.” CT at 122, 124.
Descriptions such as “safe, convenient, affordable, and reliable,” when
applied to a system that is not yet built, are neither factual nor impartial.

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Whether the route constructed with these bond funds “provide[s] Californians
a safe, convenient, affordable, and reliable alternative to driving and high gas
prices” depends on many unpredictable future circumstances such as: which
of the alternative routes listed in the measure is selected (CT at 85:30);
whether the necessary matching funds materialize (CT at 87:14); whether
private investors can be found to operate the trains and stations (“Proceeds of
bonds authorized pursuant to this chapter shall not be used for any operating
or maintenance costs of trains or facilities”3 CT at 86:34); what the ticket price
of privately operated trains will ultimately be; and whether gasoline prices will
return to over $4.00 as they were when the Legislature wrote the ballot label.
The description of the future system as “safe” and “reliable” is
particularly argumentative. Even if the state were controlling the operation
and maintenance of the system, but especially since it is not, there is no way
to foreknow whether the trains and 800 miles of unguarded track will be safe
and mechanically reliable.
C. Government Control of What Voters May See
on the Ballot Violates the Constitution’s “Free
Elections” and “Improper Practices” Guarantees

The materials prepared by the Legislature for the high-speed rail bond
plainly violate the statutory standard of objectivity that would have applied
had the Attorney General prepared them. For the Attorney General must “give
a true and impartial statement of the purpose of the measure in such language
that [it] shall neither be an argument, nor be likely to create prejudice, for or
against the proposed measure.” Elec. Code § 9051.

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The High-Speed Rail Authority has published a Request for Expressions of
Interest for Private Participation, which states: “The Authority believes it will be
necessary to rely on the private sector for many aspects of the Project’s development,
including civil works, equipment supply, operations, maintenance, and financing.”
CT at 109.

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While the Legislature enjoys great discretion at the margins to revise
the non-substantive procedures and administration of state elections, it is
always constrained by the constitutional guarantees that elections will be
“free” and not “affect[ed]” by “improper practices.” Cal. Const., art. II, §§ 3,
4. “[L]egislative bodies retain considerable discretion in formulating election
procedures and devising regulations for the form and content of ballots. As
in all other areas of governmental action, however, the exercise of such
discretion remains subject to constitutional limitations.” Gould v. Grubb
(1975) 14 Cal.3d 661, 669.
The right to vote is meaningless without the right to a fair election. “No
right is more precious in a free country.” Canaan v. Abdelnour (1985) 40
Cal.3d 703, 714. “Other rights, even the most basic, are illusory if the right to
vote is undermined.” Id.; Castro v. State of California (1970) 2 Cal.3d 223,
234. For this reason, courts have a solemn duty to “preserv[e] the integrity of
the election process.” Fair v. Hernandez (1981) 116 Cal.App.3d 868, 881.
The State (which includes this Court) has a compelling interest in “a
well-informed electorate” and in “prevent[ing] corruption of the electoral
process.” Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, 862.
That interest is of “sufficient magnitude to permit the restriction [of] ... speech
designed to influence the outcome of an election.” Id.
A “fundamental precept” of the right to a fair election “is that the
government may not ‘take sides’ in election contests or bestow an unfair
advantage on one of several competing interests.” Stanson v. Mott (1976) 17
Cal.3d 206, 217. Such governmental “attempts to influence the resolution of
issues which our Constitution leaves to the ‘free election’ of the people ...
present a serious threat to the integrity of the electoral process.” Id. at 218
(citations omitted).
As quoted in Stanson, the California Constitution guarantees “free

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elections.” Cal. Const., art. II, § 3. “Free” in this context does not mean
“without cost,” since poll taxes had long been banned by the 24th Amendment
when this provision was added to the state constitution in 1972. “Free” means
“not influenced by the government.” That is how it was used when the
Supreme Court quoted it in Stanson: “[governmental] attempts to influence the
resolution of issues which our Constitution leaves to the ‘free election’ of the
people ... present a serious threat to the integrity of the electoral process.” 17
Cal.3d at 218. That also is how it was used in Greene v. Marin County Flood
Control and Water Conservation District where, because a local government
exerted pressure on voters to vote a certain way by requiring them to identify
themselves on their ballots, the court ruled: “the lack of secrecy in the
District’s fee election was a widespread violation of a constitutional safeguard
of free elections.” Slip Op. at 31.
The word “free” in connection with constitutional election guarantees
is used again to mean “not influenced by the government” in the findings of
article IV, section 1.5, which imposes term limits on the Legislature: “The
people find and declare that the Founding Fathers established a system of
representative government based upon free, fair, and competitive elections.
The increased concentration of political power in the hands of incumbent
representatives has made our electoral system less free, less competitive, and
less representative.” This finding couldn’t mean that voting cost more,
because it cost nothing to vote in 1999 when this provision was added. The
guarantee of “free” elections, especially when listed alongside the word “fair,”
obviously means elections the outcome of which is not manipulated by the
government.
Trying to secure the outcome, or in the words of Stanson, an “attempt
to influence” the election is the obvious motivation when the Legislature
makes special rules for its own ballot measure–suspending the authority of the

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independently elected constitutional officer whose job it is ordinarily to
prepare an impartial analysis for the voters–so that it can substitute its own,
proponent-controlled propaganda.
Besides its general guarantee of free elections, the constitution imposes
a specific duty on the Legislature to prohibit improper practices that could
affect an election. Article II, section 4 states: “The Legislature shall prohibit
improper practices that affect elections.”
While this provision of the constitution has apparently never been
litigated, its meaning is plain on its face. To protect their own right to “free”
and “fair” elections, the people imposed a duty on the Legislature, declaring
that any practice which could affect the outcome of an election is improper and
shall be prohibited by the Legislature.
By suspending the role of the Attorney General and writing its own
ballot label, title and summary, which are not impartial but attempt, by
favorable descriptions and nonfactual statements of debatable opinion, to
influence voters to vote for the measure, the Legislature has itself become
guilty of an improper practice aimed at affecting the election. When the
Legislature does this, it not only neglects, but betrays its duty under article 2,
section 4.
In Stanson v. Mott, cited earlier, our Supreme Court emphasized “[t]he
importance of governmental impartiality in electoral matters” because “a
fundamental goal of a democratic society is to attain the free and pure
expression of the voters’ choice of candidates.” Therefore, “the government
must, if possible, avoid any feature that might adulterate or, indeed, frustrate,
that free and pure choice.” Stanson, 17 Cal. 3d at 219 (quoting Gould v.
Grubb, 14 Cal.3d at 677); Rees v. Layton (1970) 6 Cal.App.3d 815, 823.
In Gould v. Grubb the Supreme Court invalidated a municipal ordi-
nance which granted the top positions on the ballot to incumbents seeking

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reelection. In light of the trial court’s finding that a statistical advantage
accrued to candidates whose names occupied the top ballot positions, the Court
held the government could not properly reserve such positions for incumbents.
“[W]e emphatically reject the notion that the government may consciously
choose to favor the election of incumbents over nonincumbents in a manner
which distorts the preferences of participating voters.” 14 Cal.3d at 673.
The same principle must apply where the Legislature attempts to “favor
the election” of its own ballot measure by manipulating not merely the order
of information on the ballot, but the actual content of the information. The
Legislature cannot act “in a manner which distorts the preference of
participating voters.” Gould, 14 Cal.3d at 673.
It was in Gould that the Court announced the rule which Stanson
reiterated: “the government must, if possible, avoid any feature that might
adulterate or, indeed, frustrate, [the voters’] free and pure choice.” If “the
government must ... avoid any feature that might adulterate or, indeed,
frustrate, [the voters’] free and pure choice,” then the Legislature may not
ignore its own conflict of interest and dictate the content of the impartial
elements of the ballot for a measure it is sponsoring.
California law ordinarily protects voters from being lobbied in or near
their polling place. Under Elections Code section 18370 it is a crime to engage
in electioneering or to “[s]olicit a vote or speak to a voter on the subject of
marking his or her ballot” within 100 feet of a polling place. When the
campaigning is left behind and voters enter the voting booth and take one final
look at the ballot on which they will cast their vote, they are entitled to assume
that they are not still being solicited. Indeed, the public has a “right to an
accurate impartial analysis” because it bears “an imprimatur of official
approval ... and is likely to carry greater weight in the minds of the voters than
normal campaign literature.” Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1768;

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Knoll v. Davidson (1974) 12 Cal.3d 335, 352; Washburn v. City of Berkeley
(1987) 195 Cal.App.3d 578, 585.
Therefore “voters have a right to rely on the integrity of the ... process
and the accuracy of the [information] which they properly believe complies
with Elections Code requirements.” San Francisco Forty-Niners v. Nishioka
(1999) 75 Cal.App.4th 637, 647.
It is not enough for the Legislature to say that it passed a special statute
suspending the Elections Code requirements. For one thing, courts do not
expect average voters to compare the lengthy text of every ballot measure with
existing law to determine what has changed. Brosnahan v. Brown (1982) 32
Cal.3d 236, 257. Moreover, when ballot arguments are accompanied by a
warning that the materials “printed on this page are the opinions of the
authors,” but the title and summary are still marked “Official” with no such
warning, voters are not even tipped off that a change affecting their faith in the
Elections Code requirements has occurred.
Most importantly, however, the generally applicable Elections Code
statutes were enacted to implement the constitutional requirements that
elections be free and not affected by improper practices. Suspending the
Elections Code requirements does not disarm the constitutional protections that
underlie them. To the contrary, “the California Constitution is ‘the supreme
law of the state’ to which all statutes must conform.” Jacob B. v. County of
Shasta (2007) 40 Cal.4th 948, 963 (quoting Carter v. Seaboard Finance Co.
(1949) 33 Cal.2d 564, 579); County of Los Angeles v. Payne (1937) 8 Cal.2d
563, 574.
The Legislature’s new tactics of adopting special rules applicable only
to its measure, and suspending “any other provision of law,” the obvious aim
of which is to take advantage of voters and influence the outcome of the
election, should be deemed “improper practices that affect elections” for the

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purpose of making them less “free,” in violation of article II, sections 3 and 4,
which guarantee elections that are free from government manipulation, and
prohibit improper practices that affect elections.
As a prophylactic measure to ensure the protection of voters and the
integrity of elections, this Court should enforce article II, sections 3 and 4 by
prohibiting the Legislature from writing the impartial descriptions and analyses
of its own ballot measures. No other proponent is allowed to continue pitching
its message inside the voting booth by hijacking the impartial sections of the
ballot. The Legislature cannot pass a law making itself a special class to which
other laws do not apply. It too is bound by the constitution.
Given the Legislature’s growing appetite for describing its own ballot
measures, any remedy short of prohibiting the practice would only lead to
more litigation as the Legislature pushes the envelope of whatever textual
boundaries the Court describes. Prohibiting the practice altogether, which
appellants believe is constitutionally required, would reduce the number of
emergency election writs the courts must hear by eliminating this category of
cases where the Legislature replaces the impartial ballot label, title and
summary with its own political propaganda.
II
IF THE CONSTITUTION ALLOWS THE LEGISLATURE
TO PREPARE BALLOT INFORMATION FOR ITS OWN
MEASURES, THEN HEIGHTENED SCRUTINY APPLIES

The Superior Court not only rejected the constitutional principle that the
Legislature may not try to influence the outcome of the vote on its own ballot
measure by dictating the content of the “impartial” information that voters will
see, the Judge also ruled that no heightened level of scrutiny is called for when
a court reviews what the Legislature is requiring the ballot to contain: “The
Court declines to read into the Constitution’s general terms a specific

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requirement that Legislature-drafted ballot information must be totally
impartial.” CT at 235.
Thus the Judge deferred to the Legislature’s wording except where
petitioners established “upon clear and convincing proof ... that the copy in
question [was] false [or] misleading.” CT at 234. Applying the test applicable
to judicial review of ballot arguments, the Judge said, “In determining whether
statements are false or misleading, courts look to whether the challenged
statement is subject to verifiability, as distinct from ‘typical hyperbole and
opinionated comments common to political debate.’” CT at 235. In other
words, the Judge believed that “hyperbole and opinionated comments common
to political debate,” if not verifiably false, are appropriate for the impartial
ballot label, title and summary.
This is not the standard applied to the label, title and summary, even
when prepared by the Attorney General. While a challenger must show by
clear and convincing proof that an argument is false or misleading to have it
judicially corrected, the Elections Code permits corrections of other aspects of
the ballot if necessary to comply with other Election Code provisions (Elec.
Code § 13314(a)(2)), including those provisions requiring the Attorney
General to act “impartially” in describing for the voters the “chief purposes
and points of the proposed measure” (Elec. Code § 9004) “in such language
that [it] shall neither be an argument, nor be likely to create prejudice, for or
against the proposed measure.” Elec. Code § 9051.
If the Legislature is permitted by the constitution to prepare the
impartial summaries of its own measures, then its wording should at least be
subject to this standard of impartiality normally applicable to such summaries,
despite the purported suspension of the statute imposing that standard. There
was no justification for the Superior Court to choose the lesser statutory
standard applicable to arguments, since all statutes, including the one

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containing the lesser standard, had been suspended by the sweeping mandate
“[n]otwithstanding any other provision of law.”
Prior to 1937, the Attorney General prepared a 100-word title and
summary for the first page of any statewide initiative petition, and the
proponents were allowed to draft their own 20-word “short title” for the top of
all subsequent pages. Epperson v. Jordan (1938) 12 Cal.2d 61, 65. Political
Code section 1197b required that “Across the top of each page after the first
page of every initiative ... petition ... there shall be printed in eighteen-point
gothic type a short title, in not to exceed twenty words, showing the nature of
the petition and the subject to which it relates.” Boyd v. Jordan (1934) 1
Cal.2d 468, 470-71.
In the same way that the Legislature here wove its bias for its own
measure into the title and summaries it prepared, so others had done with the
titles for their initiatives while section 1197b was in effect. “Everything that
possibly could induce an elector to sign the proposal is carefully included in
the short title, but the one thing that would cause him to hesitate ... [is]
excluded. [In sum,] the ‘short title’ includes ‘all the sweet and excludes all the
bitter.’” Clark v. Jordan (1936) 7 Cal.2d 248, 251.
Several cases struck down proponent-written titles applying a
heightened level of scrutiny. E.g., Clark v. Jordan 7 Cal.2d 248, Boyd v.
Jordan 1 Cal.2d 468. But when the law changed and a presumptively neutral
party, the Attorney General, took over, the courts relaxed their inquiry: “These
1937 amendments worked an important change in the law ... and have
modified to some extent the rule of the Boyd and Clark cases. ... In those cases
the titles therein challenged were the short titles prepared by the proponents of
the measures. ... [Today,] in approaching the question as to whether the title
so prepared is a proper one all legitimate presumptions should be indulged in
favor of the propriety of the attorney-general’s actions.” Epperson v. Jordan

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(1938) 12 Cal.2d 61, 66.
If the Legislature is permitted by the constitution to prepare the
impartial summaries of its own measures, then a return by the courts to a
higher level of scrutiny is warranted. As the court in Gould held, when
invalidating an ordinance that gave incumbents the top ballot positions,
“[B]ecause the substantial advantage which accrues to a candidate in a top
ballot position may significantly distort the equality and integrity of the
electoral process ... the disparate treatment resulting from such a classification
scheme must be shown to be necessary to achieve a compelling governmental
interest.” Gould v. Grubb, 14 Cal.3d at 674-75. The court called this a
“standard of ‘close scrutiny.’” Id. at 675.
So too here, where the ballot label, title and summary were not prepared
by a presumptively neutral party, but by the “inevitably” biased proponent of
the measure (Vargas v. City of Salinas __ Cal.4th __ (slip op. at 43)), and
where the advantage which accrues to the proponent in not only revising the
order of the ballot, but its contents, “may significantly distort the equality and
integrity of the electoral process” (Gould v. Grubb, 14 Cal.3d at 674-75), the
courts should look with “close scrutiny” at the wording and reject it if it is not
“impartial.”
CONCLUSION
For these reasons, this Court should enforce article II, sections 3 and 4
of the California Constitution by prohibiting the Legislature from writing the
impartial descriptions and analyses of its own ballot measures. If the Court
finds, however, that the Constitution permits the Legislature to prepare the
impartial summaries of its own measures, then the Legislature’s wording
should at least be reviewed with heightened scrutiny and rejected it if it is not
“impartial.”
DATED: April 29, 2009.

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Respectfully submitted,
TREVOR A. GRIMM
JONATHAN M. COUPAL
TIMOTHY A. BITTLE

______________________
Timothy A. Bittle
Counsel for Appellants

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WORD COUNT CERTIFICATION
I certify, pursuant to Rule 8.204(c) of the California Rules of Court,
that the attached brief, including footnotes, but excluding the caption page,
tables, and this certification, as measured by the word count of the computer
program used to prepare the brief, contains 5,545 words.
DATED: April 29, 2009.

______________________
Timothy A. Bittle
Counsel for Appellants

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