SACRAMENTO — A panel of three state appeals court justices appeared divided Friday over whether to allow a ballot proposition that is a key element of Gov. Arnold Schwarzenegger's agenda to remain on the Nov. 8 special election ballot.
With the printing of 12 million voter guides scheduled to begin Aug. 15, the 3rd District Court of Appeal is expected to rule by Tuesday. Any decision is likely to be appealed quickly to the state Supreme Court.
At stake is Proposition 77, which attempts to strip politics from the once-a-decade job of drawing legislative and congressional districts by giving the task to a panel of retired judges.
Lawmakers now map districts, and the lines they drew in 2001 cluster Democratic and Republican voters to make reelection a safe bet for incumbents. Retired judges, Schwarzenegger has said, will draw more compact, competitive districts that he argues would make lawmakers more responsive to voters.
Last month, a Sacramento County Superior Court judge threw Proposition 77 off the ballot. She sided with Atty. Gen. Bill Lockyer, who argued that the ballot proponents unlawfully gave one version of the initiative to the attorney general but circulated a different version of the measure to voters when gathering signatures to put it on the ballot.
The lower court judge said the law requires that the version circulated to voters be identical to the version given to the attorney general. Allowing exceptions would insert courts in the "political thicket," she ruled.
Ted Costa, the antitax activist who helped organize the recall of Gov. Gray Davis and is the chief sponsor of Proposition 77, has called the differences between the two versions of the ballot measure inadvertent. His attorney, Daniel M. Kolkey, told the justices in Friday's argument that the differences between the two versions are stylistic, technical and minor. Proposition 77 should stay on the ballot because its sponsors "substantially" complied with the law, Kolkey said.
But Deputy Atty. Gen. Vickie Whitney argued that the differences between the two versions are "substantial" and that the law does not allow for discrepancies.
There are at least 11 variations in the two versions, some involving a few words -- such as "selected" being replaced with "nominated by" -- and some involving entire paragraphs. One version also gives legislative leaders an additional day to choose from a pool of retired judges in the selection process the initiative uses to create a redistricting panel.
