The decision on the arena vote petitions will depend on whether the voters were confused when they signed the petitions. This is not the first time volunteer petition gatherers have made mistakes in their petitions, and there is a string of California court cases that have held petitions cannot be rejected unless the errors undermine the electoral process by confusing the voters.
City Clerk Shirley Concolino found several errors in the petitions, including differences in language in the notice of intent; unnecessary language inserted between the title and summary and the notice of intent; lack of the necessary enacting language (Be it enacted by the people of the city of Sacramento); and failure of the published notice of intent to include the names of the proponents.
While all these omissions are evidence of sloppy and careless drafting by the proponents, the essential legal test is: Did the voter understand what he or she was signing?
In a 1934 case, the California Supreme Court refused to take a measure off the ballot because its title did not include the required words “Constitutional amendment” and “submitted directly to the electors” because the voters did not need these words to determine what the petition was about. In a 1981 case, the court ruled that failure to use the signature box as required in the law was not sufficient to take a measure off the ballot.
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But the most important case dealt with former Gov. Arnold Schwarzenegger’s 2005 special election in which his redistricting measure, Proposition 77, was challenged because the petition that was circulated was different than the one submitted to the attorney general for title and summary. A lower court and court of appeal took the measure off the ballot because the two versions differed and the courts found that the differences were substantial.
But the Supreme Court said no, and in a lengthy opinion said the measure should go the voters despite the petition’s errors. “Good-faith human error cannot always be avoided and that it would be inconsistent with the fundamental constitutional interests of the tens or hundreds of thousands of persons who have signed an initiative or referendum petition to invalidate an otherwise qualified petition … when it is apparent that the technical defect in question, as a realistic matter, did not adversely affect the integrity of the electoral process.”
The court made clear that a defective petition would not keep the measure from the ballot as long as “the version circulated for signature did not mislead the public … or threaten the integrity of the electoral process.” But the court said, the facts must “clearly establish that the discrepancy was inadvertent, and that no evidence was presented suggesting that the proponents intentionally circulated a (different) version of the measure. … Were the proponent to intentionally confuse the voters that would be an entirely different matter.”
Courts have liberally construed the people’s initiative power; once sufficient signatures have been obtained, a constitutional right flows to the signatories to have their measure voted on. Incompetence of the signature gatherers does not eviscerate that right.