Tomorrow, the California Supreme Court will hear arguments on the constitutionality of Proposition 8, while a trial judge in Sacramento will hear arguments that the Legislature has tried to "rig" the upcoming election on Proposition 1A by drafting the ballot statements in, shall we say, a less than fair and impartial way.  Both decisions will have far-reaching and long-term impacts, regardless of the outcome.

Proposition 8, one of the shortest initiatives in recent memory, added just 13 words to the State Constitution: "Only marriage between a man and woman is valid or recognized in California." Since Prop. 8 amended the Constitution, it must be constitutional, right?  Maybe, maybe not. The question at issue is whether the voters had the power to enact Prop. 8 at all.

Remember that prior to the voter’s adoption of Proposition 8, a bare majority of the Supreme Court had concluded that our Constitution provides a right to marry and that our Constitution’s equal protection clause prohibits discrimination on the basis of sexual preference.  Neither of these concepts is actually written in the Constitution.  Thus, the argument goes that the voters can only amend the constitution by initiative – the change proposed by Prop. 8 is more fundamental, akin to a revision of the Constitution that can only be proposed by the Legislature, if at all.

We may have a good idea what the Court thinks by the end of the day tomorrow.

Off Broadway, in a Sacramento Superior Court, strange bedfellows, the Howard Jarvis Taxpayers Association and Health Access will be arguing that the ballot materials written by the Legislature in the dead of the night for Proposition 1A, and in particular the ballot label printed on each ballot, is so biased, misleading and incomplete that the court should reject it and rewrite it.  If successful the lawsuit might very well change the outcome of the election.  

Normally the ballot materials are prepared by the Attorney General who is charged with the duty of preparing a fair and impartial summary of the purposes and effects of a proposed measure.  If the Attorney General is the measure’s proponent, the job is transferred to the Secretary of State.  However, when the Legislature proposes a measure, it frequently chooses to ignore the Elections Code procedures and prepares its own ballot label.  The Legislature did just that for all of the measures proposed for the statewide special election.

In the case of Prop. 1A, the Legislature wrote the following:

‘RAINY DAY’ BUDGET STABILIZATION FUND.  Reforms the budget process.  Limits future deficits and overspending by increasing the size of the state ‘rainy day’ fund and requiring above-average revenue to be deposited into it for use during economic downturns.  

The ballot label makes no mention of the extension of the temporary tax for two plus years if Prop. 1A passes.  This week’s Field Poll shows that little tidbit of information is pretty important to the voters.  

Thus, at issue tomorrow in a Sacramento courtroom is the power of the Legislature to place its own constitutional amendment on the ballot and how much deference should be afforded to it in describing its proposal.  The trial court decision in Sacramento may affect the outcome of the special election, but it might also tend to curb legislative abuse in the future or give the Legislature carte blanche.

It’s a good day to go to the theater.