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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SACRAMENTO
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ALAN D. CLARK,
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Petitioner,
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v.
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Dept. 42
Case No. 34-2010-80000460
JUDGMENT
DEBRA BOWEN, in her official capacity as
California Secretary of State,
Respondent.
GEOFF BRANDT, in his official capacity as
State Printer; the LEGISLATURE OF THE
STATE OF CALIFORNIA; MAC TAYLOR,
in his official capacity as Legislative Analyst,
Real Parties in Interest.
GOVERNOR ARNOLD SCHWARZENEGER;
ATTORNEY GENERAL EDMUND G. BROWN,
JR.; SENATOR ABLE MALDONADO; YES ON
14—CALIFORNIANS FOR AN OPEN PRIMARY,
Intervenors.
_______________________________________/
The hearing on the First Amended Verified Petition for Writ of Mandate came on
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regularly for hearing on March 11, 2010, in Department 42 of the above-entitled court, the
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Honorable Allen Sumner presiding. Deborah B. Caplan and Lance H. Olson appeared for
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petitioner; Deputy Attorney General Mark Beckington appeared for respondents and for
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intervenor Attorney General Brown; Principal Deputy Legislative Counsel Robert A. Pratt
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appeared for real parties in interest Legislature and Legislative Analyst Mac Taylor; the
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Governor’s Legal Affairs Secretary Andrea Lynn Hoch and Chief Deputy Legal Affairs Secretary
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Christopher E. Krueger appeared for intervenor Schwarzenegger; and James R. Parrinello
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appeared for intervenors Senator Abel Maldonado and Yes on 14.
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Having considered the parties’ written and oral arguments, declarations and exhibits,
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the court finds that the introductory clauses, “notwithstanding any other provision of law,” in
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chapter 7 of the Statutes of 2009, section 9, subdivisions (b) and (c) (“SB 19”), do not deprive
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the court of jurisdiction to review the ballot label and ballot title and summary in section 9
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enacted by the Legislature for Senate Constitutional Amendment 4 of the 2009-10 Regular
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Session (“Proposition 14”). This finding is based on the following three reasons:
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1. The “notwithstanding” clauses in section 9 of SB 19 indicate a legislative intent to relieve the
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Attorney General of his statutory responsibility to prepare a ballot label and ballot summary and
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title for Proposition 14. The clauses do not indicate a legislative intent to repeal or otherwise
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supersede the statutory provisions for judicial review of the label, and summary and title as part
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of the ballot pamphlet, including Elections Code section 9092 and Government Code section
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88006. All the statutes specified in the “notwithstanding” clauses relate to the Attorney
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General’s responsibility for preparing the ballot label and title; none relate to judicial review of
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these ballot materials.
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2. The “notwithstanding” clauses in section 9 of SB 19 would be ineffective in repealing or
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superseding the provisions of Government Code section 88006 providing for judicial review of
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ballot pamphlet materials. The Legislature enacted SB 19 without following the constitutional
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and statutory procedures necessary to amend section 88006, part of the initiative measure
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enacting the Political Reform Act of 1974. (See Gov. Code § 81012 and Cal. Const., art. II, § 10,
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subd. (c).) Government Code section 88007, permitting regular legislative amendments that “add
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to the ballot pamphlet information,” cannot authorize amendments that would repeal or
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supersede section 88006.
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3. The “notwithstanding” clauses in section 9 of SB 19 cannot insulate the Legislature’s ballot
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label and ballot title and summary for Proposition 14 from judicial review to determine whether
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the ballot language is constitutionally valid. Such review is necessary to ensure that the authority
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and responsibility of the Legislature “to provide the manner in which . . . initiative measures are
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submitted to the electors” (Cal. Const., art. II, § 10, subd. (e)) are exercised in compliance with
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the constitutional requirement that the Legislature “provide for . . . free elections.” (Cal. Const.,
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art. II, § 3.) “A fundamental precept of this nation’s democratic electoral process is that the
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government cannot ‘take sides’ in election contests or bestow an unfair advantage on one of
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several competing factions.” (Stanson v. Mott (1976) 17 Cal.3d 206, 217. See also Gould v.
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Grubb (1975) 14 Cal.3d 661, 670, 673.) The government’s use of public funds to mount an
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election campaign which attempts to influence the resolution of issues which the California
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Constitution allocates to the “free election” of the people would present a serious threat to the
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integrity of the electoral process. (Stanson, supra, 17 Cal.3d at 218.)
Consistent with this constitutional requirement for procedures protective of free
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elections, ballot labels and ballot summaries and titles are prepared and disseminated at public
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expense to inform and educate voters about the measures they will be voting on, to prevent voters
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from being “imposed upon” or misled about the provisions and purposes of the measures, and to
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thereby promote electoral integrity. (See Clark v. Jordan (1936) 7 Cal.2d 248, 252; Boyd v.
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Jordan (1934) 1 Cal.2d 468, 475.) As an informational document disseminated by the
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government to the voters, the ballot labels, titles and summaries may not take sides or advocate
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any specific position. (See Elec. Code § 9051 (ballot title by Attorney General required to be as
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true and impartial statement of initiative measure’s purpose); Elec. Code § 9087. (impartial
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analysis by Legislative Analyst); Gov. Code 88003 (same).) And when the Legislature proposes
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a ballot measure, such as Proposition 14, the measure’s author and other individual legislators are
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provided specific opportunities to submit arguments favoring or opposing the measure -- separate
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from any ballot label or ballot summary for the measure. (Elec. Code §§ 9041, 9042.)
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To assure that ballot pamphlet materials prepared and disseminated at public expense
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are fair and impartial, consistent with the constitutional objective of fair and free elections,
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judicial review of the materials is appropriate and necessary.
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The court further finds that its review of the ballot label and the ballot title and
summary for Proposition 14 set forth in section 9 of SB 19 is governed by the standard in
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Elections Code section 9092 and Government Code section 88006: The court must determine
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whether any portion of the ballot language in section 9 is shown, by clear and convincing
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evidence, to be false or misleading. (See also Elec. Code § 13282 (judicial review of ballot label
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pursuant to provisions of Elec. Code § 9092).)
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In following this standard of review, the court gives great deference to the
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Legislature’s ballot language, just as it would give great deference to any statutory enactment of
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the Legislature. The court presumes the validity of the statutory language, and rejects any portion
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of the language only upon clear and convincing evidence that it is false or misleading. In
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addition, the court is guided by the nature and purpose of the ballot label and ballot title and
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summary -- to provide a fair and impartial summary of the main points of Proposition 14 free of
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partisan advocacy pursuant to Stanson and its progeny.
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The court rejects the claim of respondent Legislative Analyst and intervenors that
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petitioner’s amendment of his petition to include a challenge to the fiscal impact analysis of the
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Legislative Analyst is untimely. Petitioner made the amendment within the brief 20-day period
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for public display of the draft ballot pamphlet containing the analysis and would have been
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entitled to file a separate action raising the same claim on March 9, 2010, when he filed his First
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Amended Verified Petition.
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WHEREFORE IT IS ORDERED, ADJUDGED AND DECREED that:
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1. The draft copy of the ballot label for Proposition 14 on the June 8, 2010,
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Statewide Direct Primary Election shall be amended by:
a. Deleting “PRIMARIES. GREATER PARTICIPATION IN ELECTIONS”
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and substituting “INCREASES RIGHT TO PARTICIPATE IN PRIMARY ELECTIONS.” This
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amendment is necessary to clarify that “greater participation” refers to the voter’s range of
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choices, not voter turnout.
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b. Deleting “No significant net change in state and local government costs to
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administer elections” and substituting “The data are insufficient to identify the amount of any
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increase or decrease in costs to administer elections.” This amendment is necessitated by the
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statements in paragraphs 5 through 8 of the Declaration of Legislative Analyst Mac Taylor,
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indicating that information from county registrars of voters about the costs they may incur if
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voters adopt Proposition 14 was not provided to and considered by the Legislative Analyst in
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evaluating Proposition 14’s fiscal impact until a legislative hearing on March 2, 2010, two weeks
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after the Legislative Analyst completed the fiscal analysis, and the cost information obtained has
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not been subjected to the type of scrutiny required for inclusion in a ballot analysis. Thus, the
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Legislative Analyst’s fiscal analysis of Proposition 14’s fiscal impact does not show the amount
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of any increase or decrease in cost to county governments, as required by Election Code section
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9087 and Government Code section 88003, and cannot provide a reliable basis to support the
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Legislative Analyst’s conclusion that there will be no significant net change in state and local
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government costs to administer elections.
3. The draft copy of the ballot title and summary for Proposition 14 on the June 8,
2010, Statewide Direct Primary Election is amended by:
a. Deleting “PRIMARY ELECTION PROCESS REFORM. GREATER
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PARTICIPATION IN ELECTIONS” and substituting “ELECTIONS. INCREASES RIGHT TO
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PARTICIPATE IN PRIMARY ELECTIONS.” This amendment is necessary to clarify that
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“greater participation” refers to the voter’s range of choices, not voter turnout.
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b. Inserting the phrase “in the primary” following “Gives voters increased
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options” in the second bullet. This amendment is necessary to avoid confusing and misleading
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voters as to whether Proposition 14 increases voters’ options in elections other than primaries.
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c. Modifies the third bullet to read: “Provides that only the two candidates
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receiving the greatest number of votes in the primary will appear on the general election ballot
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regardless of party preference.” This amendment is necessary to inform voters of a fundamental
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change that would occur if Proposition 14 is adopted: The elimination of the constitutional right
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of a political party that has participated in a primary election for a partisan office to participate in
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the general election for that office. (See Cal. Constitution, art. II, §5, subd. (b).) By omitting any
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mention of this fundamental change resulting from the adoption of Proposition 14, the ballot title
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and summary does not fairly represent a chief purpose of the measure and is misleading. (See
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Brennan v. Board of Supervisors (1981) 125 Cal.App.3d 87, 93, citing Amador Valley Joint
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Union High Sch. Dist. v. State Bd. of Equalization, (1978) 22 Cal.3d 208, 243, Clark v. Jordan,
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supra, 7 Cal.2d at p. 251, and Boyd v. Jordan, supra, 1 Cal.2d at p. 472.)
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d. Inserting before the third bullet a new bullet stating “Provides that candidates
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may choose not to have a political party preference indicated on the primary ballot.” This
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amendment is necessary to alert voters to a central feature of the open primary system proposed
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for adoption by Proposition 14. (See Senate Constitutional Amendment No. 4, Res. Ch. 2, p. 2
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(Second -- (d); p. 3 (Third -- SEC. 5). By omitting this central feature of the open primary
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system proposed by Proposition 14, the ballot title and summary does not fairly represent a chief
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purpose or point of the measure and is misleading. (See Brennan v. Board of Supervisors (1981)
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125 Cal.App.3d 87, 93, citing Amador Valley Joint Union High Sch. Dist. v. State Bd. of
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Equalization, (1978) 22 Cal.3d 208, 243, Clark v. Jordan, supra, 7 Cal.2d at p. 251, and Boyd v.
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Jordan, supra, 1 Cal.2d at p. 472.)
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e. Deleting “No significant net change in state and local government costs to
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administer elections” and substituting “The data are insufficient to identify the amount of any
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increase or decrease in costs to administer elections.” This amendment is necessitated by the
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statements in paragraphs 5 through 8 of the Declaration of Legislative Analyst Mac Taylor,
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indicating that information from county registrars of voters about the costs they may incur if
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voters adopt Proposition 14 was not provided to and considered by the Legislative Analyst in
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evaluating Proposition 14’s fiscal impact until a legislative hearing on March 2, 2010, two weeks
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after the Legislative Analyst completed the fiscal analysis, and the cost information obtained has
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not been subjected to the type of scrutiny required for inclusion in a ballot analysis. Thus, the
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Legislative Analyst’s fiscal analysis of Proposition 14’s fiscal impact does not show the amount
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of any increase or decrease in cost to county governments, as required by Election Code section
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9087 and Government Code section 88003, and cannot provide a reliable basis to support the
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Legislative Analyst’s conclusion that there will be no significant net change in state and local
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government costs to administer elections.
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4. The draft copy of the Analysis by the Legislative Analyst for Proposition 14 on
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the June 8, 2010, Statewide Direct Primary Election is amended as follows: on page 4, the two
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occurrences of “would” in the penultimate sentence of the first paragraph beginning “Minor
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Costs and Savings” are changed to “may,” and the last sentence in the penultimate sentence of
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the first paragraph beginning “Minor Costs and Savings” is deleted and replaced by “However,
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the data are insufficient to determine whether state and local costs to administer elections will
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increase or decrease.” This amendment is necessitated by the statements in paragraphs 5 through
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8 of the Declaration of Legislative Analyst Mac Taylor, indicating that information from county
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registrars of voters about the costs they may incur if voters adopt Proposition 14 was not
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provided to and considered by the Legislative Analyst in evaluating Proposition 14’s fiscal
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impact until a legislative hearing on March 2, 2010, two weeks after the Legislative Analyst
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completed the fiscal analysis, and the cost information obtained has not been subjected to the
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type of scrutiny required for inclusion in a ballot analysis. Thus, the Legislative Analyst’s fiscal
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analysis of Proposition 14’s fiscal impact does not show the amount of any increase or decrease
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in cost to county governments, as required by Election Code section 9087 and Government Code
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section 88003, and cannot provide a reliable basis to support the Legislative Analyst’s conclusion
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that there will be no significant net change in state and local government costs to administer
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elections.
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5. The amendments to Proposition 14’s ballot label and ballot title and summary
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ordered in paragraphs 1 through 3 of this judgment are set forth in Exhibit A attached hereto and
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are incorporated by reference herein as though fully set forth.
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6. The amendments to the analysis of the Legislative Analyst for Proposition 14
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ordered in paragraph 4 of this judgment are set forth in Exhibit B attached hereto and are
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incorporated by reference herein as though fully set forth.
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7. A peremptory writ of mandate shall issue requiring respondent Secretary of State
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Bowen to: (a) revise the text of the ballot label and the ballot title and summary for Proposition
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14 in the draft copy of the June 8, 2010, Statewide Direct Primary Election ballot pamphlet to
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conform to the text of the ballot label and ballot title and summary set forth in the attached
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Exhibit A; (b) revise the text of the analysis of the Legislative Analyst for Proposition 14 in the
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draft copy of the June 8, 2010, Statewide Direct Primary Election ballot pamphlet to conform to
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the text of the analysis set forth in the attached Exhibit B; and (c) forward the revised ballot label,
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the revised ballot title and summary, and the revised analysis of the Legislative Analyst to real
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party in interest Brandt for printing no later than the close of business on March 15, 2010.
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Dated:
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_______________________________________
ALLEN SUMNER
JUDGE OF THE SUPERIOR COURT
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