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Prop. 14 fight comes down to words

Measure's success could hinge on a court battle over language.

March 10, 2010|George Skelton | Capitol Journal

From Sacramento — The fate of an open primary proposal on the June ballot may well hinge on the outcome of a bitter court fight this week over a dozen or so words.

The words will be seen by millions of voters -- everyone who casts a ballot in the June 8 primary. They will summarize what Proposition 14 is all about and undoubtedly influence more votes than any endorsement or mail piece.

It's language that will be used in the "ballot label" printed right on the ballot, and the "title and summary" included in the secretary of state's official voter guide mailed to households.

"If we win the case, we win the election," says David Townsend, a strategist for the Prop. 14 side. "If they get their language, we lose the election."

At issue is whether the proposed open primary amounts to "reform" or merely "change." The current ballot language states the former; opponents contend the latter. Also, would Prop. 14 really lead to "greater participation in elections," as the language claims? Not necessarily, opponents argue.

There are other disputes: Opponents want to point out that candidates would not be required to list their political party. They could list it voluntarily. Also, the anti-14 side wants the summary to state that the measure eliminates the guaranteed rights of political parties -- and write-in and independent candidates -- to be on the general election ballot.

And they dispute the nonpartisan legislative analyst's finding that an open primary system would result in "no significant" increase in government costs. It could raise costs by "between $10 million and $20 million," they say, and insist the summary should point that out.

Accusations are flying all around the Capitol, mainly from Prop. 14 backers, who claim they were blindsided when a labor union, the California School Employees Assn., filed a suit against the Legislature without notifying them.

Most legislators -- both parties -- strongly oppose an open primary system. But they placed Prop. 14 on the ballot as part of a late-night deal last year to buy the budget-and-tax vote of Sen. Abel Maldonado (R-Santa Maria).

Now proponents suspect that the union and legislative leaders conspired to change the ballot language in the opponents' favor by attempting an out-of-court settlement -- a sort of bait-and-switch on Maldonado.

"I've seen a lot of outrageous behavior in my 40 years around the Capitol," says Steve Merksamer, the Prop. 14 lawyer, who's a former gubernatorial chief of staff and deputy attorney general, "but never have I seen a more cynical and shameful attempted abuse of power than this."

Aides for Democratic leaders say Merksamer is hyperventilating. But he had reason -- learning late in the game that his client, Prop. 14, was about to get belted without being allowed to defend itself.

Senate leader Darrell Steinberg (D- Sacramento) stepped in Monday and, in essence, removed the Legislature from the case, leaving it to the pro-14 camp to fight.

But let's back up: Prop. 14 would create a "top-two" open primary. There would no longer be party nominating elections, except for president.

There would be one primary ballot, open to all candidates and voters. The top two vote-getters, regardless of party, would advance to the general election. In a heavily Democratic district, it's possible that two Democrats could face each other in the runoff. Ditto for two Republicans in a GOP district.

The goal is to force candidates in primaries to appeal to a wider range of voters than merely their own party members -- and elect some pragmatic moderates who can crack Sacramento's partisan gridlock.

Because the Legislature produced Prop. 14, it was allowed to write the ballot label and title and summary. When a ballot measure originates as a voters' initiative, the attorney general composes the language.

The legislative counsel wrote the Prop. 14 language with aides to Gov. Arnold Schwarzenegger, who strongly supports an open primary.

So when the school employees union decided to challenge the language, it sued the Legislature. That was on March 2, a Tuesday. And the union and the legislative counsel soon began composing a "stipulated judgment" that agreed to most of the opponents' demands, subject to a judge's approval.

The Prop. 14 side never would have learned that their language was about to be shredded except for an aide, Amanda Fulkerson, monitoring her BlackBerry in bed before turning off the light Thursday night. A Google alert tipped her off to an anti-14 blogger's reporting of the suit.

Merksamer learned the next morning. He asked the legislative counsel's office to defend the original language, and it refused.

The Prop. 14 camp suspected the main plotter was Assembly Speaker John Perez (D- Los Angeles).

"Categorically, absolutely, 100% untrue," Perez told me. "The first I was aware of this was on Friday."

Steinberg says the same. OK, then, something needs to change. They should have known sooner and informed Maldonado and the Prop. 14 side.

Other lessons:

* The Legislature shouldn't be writing its own ballot labels and summaries; that's the attorney general's job.

* Things as important as open primaries shouldn't be bartered for non-related issues such as a budget, which shouldn't require a two-thirds majority vote anyway.

* Lawmakers shouldn't be pulling all-nighters. Fortunately, they've sworn off such behavior. That's at least one reform.

george.skelton @latimes.com

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