A Lawsuit Challenges The Two-Thirds Rule

It seems thirty years or so too late, but a former UCLA chancellor and director of the MOCA in Los Angeles named Charles Young filed suit against the provision in Proposition 13, passed in 1978, that requires a two-thirds vote in the Legislature to raise taxes. The legal theory behind the case mirrors the theory behind the attempted repeal of Prop. 8 this year, which was ultimately unsuccessful.

The legal theory of the suit, which names the Legislature's chief clerks as the technical defendants, is that when voters passed Proposition 13 in 1978, cutting property taxes and requiring a two-thirds vote for tax increases, it was a "revision" of the state constitution rather than an "amendment."

The constitution allows amendments to be made by initiative petition but allows revisions - generally a more fundamental change - to be made only through a constitutional revision commission or a constitutional convention.

It's essentially the same argument that opponents of Proposition 8, the 2008 measure that outlawed same-sex marriages, made in attempting to persuade the state Supreme Court to void that measure. But the court, which had earlier sanctioned same-sex marriages, ruled that Proposition 8 was valid.

I'm a bit surprised that Young didn't include the single-subject rule in his charges, as the property tax rules and the two-thirds requirement for taxes don't seem to bear much relationship to one another. Of course, that has already been argued before the state Supreme Court, along with the revision argument, equal protection concerns and about a half-dozen other charges, four months after passage, in Amador Valley, and the Supreme Court upheld the initiative. Here's the way the revision argument played out back then.

The California Supreme Court held that although Proposition 13 would result in various substantial changes to the constitution, it was only an amendment because the changes were narrowly tailored to the objective of changing the taxation system. Id. at 228. According to the Court, a change in the voting requirement did not amount to a revision of the constitution. The Court further stated it was not uncommon to have similar voting requirements for financial matters, and that the Proposition would not effect home rule. Id. The Court cited Article XIII, Section 20 of the State Constitution that authorizes the legislature to set maximum property tax rates. Id. at 228. The Court concluded this new article, implemented by Proposition 13, would be no more threatening to home rule than Article XIII, § 20. Id. The Court, while not endorsing the Proposition, did state the initiative process was a direct form of government from the people. Id. Finally, the court held that it would not limit the ability of people, through the initiative process, to achieve such a limited purpose of a new system of taxation. Id.

The Court upheld every aspect of Prop. 13 at that time, and the law has withstood multiple legal challenges over the years. Like with Proposition 8, the Court seems loath to overturn a vote of the people, and now we're 31 years down the road. Of course, this forms the core of Charles Young's argument, that the effects of Prop. 13 are powerful evidence that it is not merely an amendment, but a major revision affecting the lives of all California's citizens.

I'm skeptical that this can get off the ground, but I see little harm in it. And maybe putting Prop. 13 on trial, and laying out the effects in sharp detail, could lead to closing the loophole and building a sustainable revenue base.

The Al Franken Decade

It took almost a decade for this recount to resolve itself, but the Minnesota Supreme Court rendered their verdict in the Franken-Coleman Senate case, and it's a sweep for Franken, as expected.

In the Matter of the Contest of the General Election held on November 4, 2008, for the purpose of electing a United States Senator from the State of Minnesota, Cullen Sheehan and Norm Coleman, contestants, Appellants vs. Al Franken, contestee, Respondent.

1. Appellants did not establish that, by requiring proof that statutory absentee voting standards were satisfied before counting a rejected absentee ballot, the trial court's decision constituted a post-election change in standards that violates substantive due process.

2. Appellants did not prove that either the trial court or local election officials violated the constitutional guarantee of equal protection.

3. The trial court did not abuse its discretion when it excluded additional evidence.

4. Inspection of ballots under Minn. Stat. § 209.06 (2008) is available only on a showing that the requesting party cannot properly be prepared for trial without an inspection. Because appellants made no such showing here, the trial court did not err in denying inspection.

5. The trial court did not err when it included in the final election tally the election day returns of a precinct in which some ballots were lost before the manual recount.

And here's the money quote:

For all of the foregoing reasons, we affirm the decision of the trial court that Al Franken received the highest number of votes legally cast and is entitled under Minn. Stat. § 204C.40 (2008) to receive the certificate of election as United States Senator from the State of Minnesota.

Tim Pawlenty has said all along that he would certify the winner of the election if the Minnesota Supreme Court told him to do so. They have now told him. But all along he gave himself an out, that he would certify it as long as another court didn't tell him to stop pending another appeal. Coleman could proceed to the federal courts at this point, and national Republicans have been happy to bankroll him on that fruitless quest and keep Al Franken out of the Senate as long as possible. Also, Senate Republicans could actually filibuster Franken's entry into the Senate, even with a signed certificate. I'm skeptical that this will move so smoothly from here.

More from Eric Kleefeld.

...Here's the head-of-a-pin dance that Pawlenty could spin:

The bottom line is that the Court says that Franken is entitled to an election certificate, but there is no direct order to the state's governor to sign one. We'll see what the governor does, if Coleman does not concede, as he well may at this point. If not, the opinion is not final until the period for rehearing ends (see the final footnote of the opinion). That's a ten day period, enough time to file an emergency stay application in the U.S. Supreme Court. It would go to Justice Alito, now circuit justice for the Eighth Circuit.

Pawlenty Will Seat Franken - Unless He Doesn't Have To

Roll Call relies on some sources in the Coleman camp and concludes that the former Senator may give up the fight on appealing the election victory of Al Franken if the State Supreme Court comes down against him, because "Coleman anticipates that Gov. Tim Pawlenty (R) would ultimately sign Franken's certification papers."

Maybe Coleman knows something I don't, and probably so. But it looks to me that Pawlenty has given himself plenty of outs.

Pawlenty appeared this afternoon on the Neil Cavuto show, and Cavuto observed that Pawlenty's decision to not run for a third term, which many people see as a possible lead-up to a presidential campaign in 2012, also frees him up to fight for Norm Coleman. Pawlenty denied that he would behave in such a manner -- but he did point out some possible circumstances that could hold things up further:

"So you could be signing a certificate that would turn that Senate seat over to the Democrat Al Franken?" Cavuto asked. "And that would probably not suit you well."

"Well, I hope not, but you know I have to follow the law," Pawlenty responded. "You know, Neil, if the Minnesota Supreme Court says, 'You sign the certificate' -- and there's not an appeal or some other contrary direction from a federal court -- you know, that's my duty." (emphasis mine)

In other words, he'll sign the certificate as long as Coleman doesn't appeal to federal courts. And there's no real time-sensitive limit on how long Pawlenty could wait for that appeal to transpire.

I just don't think it's a closed deal, and Democrats need to keep up the pressure to get Franken seated.

...Kevin Drum is pretty skeptical of the sourcing on Coleman's wavering.

Pawlenty Readies To Defy Minnesota Courts

That's how I read this announcement:

Two sources have confirmed that Minnesota Gov. Tim Pawlenty will announce that he will not seek re-election in 2010.

The sources confirmed to WCCO-TV political reporter Pat Kessler that the announcement about Pawlenty's future plans will include an announcement that he will not seek a third term.

The announcement is expected to be made at a 2 p.m. press conference.

Pawlenty wants to run for President, and maybe wants to free his schedule for 2011 (although that didn't exactly work out for Mitt Romney). He also might want to avoid a re-election fight in a blue state after years of budget deficits and recessions. This is a bad time to be a Governor.

But clearly, not having to face Minnesota voters again frees him up to do whatever he deems necessary with respect to the US Senate election. Al Franken will probably get approval from the state Supreme Court within a couple weeks as the winner of the election. At that point the Court will, in all likelihood, request a certificate of election for Franken to be seated. The people of Minnesota want two Senators again. Pawlenty, by taking himself out of the running, removes himself of accountability and can now be free to show Republican primary voters what a good soldier he is. He'll refuse to sign the certificate. Heck, he makes this announcement THE DAY after the Supreme Court heard arguments in the Franken-Coleman case. He's practically begging you to make the connection.

MN-Sen: State Supremes Hear Oral Arguments

Al Franken and Norm Coleman's lawyers had their oral arguments before the Minnesota Supreme Court today, the last step before resolving this battle at the statewide level. Eric Kleefeld has a recap of the questions to Coleman's lawyers and Franken's lawyers, and Rick Hasen offers these thoughts:

1. It is always dangerous to guess how a court is going to come out based upon oral argument. But there's good reason here to believe that the state Supreme Court Justices went into this with their minds made up: this case has been expedited pursuant to state law, and they've had two weeks (including three weekends) to think about how to decide this case based upon the briefs. They likely had a draft opinion or set of opinions in front of them. So this oral argument may be more of a tip off than most.

2. There's no question that Coleman's side got much tougher question than Franken's side, and based upon oral argument I would not be surprised to see a unanimous decision in favor of Franken in a relatively short time frame (within two weeks--maybe sooner). I counted at least three of the five Justices who were much more willing to accept Franken's arguments than Coleman's arguments, and who asked Coleman's side much more difficult questions.

The real question comes after this, when the Minnesota Supremes offer their expected verdict. Will they ask for the certification of the election (probably yes)? Will Governor Tim Pawlenty sign that certificate (depends on who he thinks is the audience - Minnesotans, or an imagined 2012 Republican primary electorate)? Will Republicans in the Senate allow Franken's seating (not hard to answer that one)? And will Coleman sue in federal court? Hasen has the outline of an answer for that:

Near the end of the argument, (Coleman lawyer Joe) Friedberg suggested that if the state Supreme Court affirmed under a strict compliance standard, it would create (or exacerbate) the federal constitutional problems that Coleman has been pushing. These are arguments Coleman may try to advance, assuming he loses in this court, in a cert. petition in the U.S. Supreme Court, or in a separate federal lawsuit. In pieces at Slate, the ACS Blog, and the LA Times, I have considered both the merits of those constitutional arguments and whether they need to be addressed in a separate federal court action.

Coleman's argument, essentially, is that we cannot know the outcome, it's chaos, and so we cannot seat Al Franken. They've offered little definable proof for this, and were criticized on this point in court today. But that's what they're going with. And it makes sense if you understand that Coleman does not seek another term, but only to play the role of a linebacker keeping Franken out of the end zone. It's obstructionism writ large. The question remains, how much patience will Republicans have for this tactic?

Making Norm Coleman Pay, One Dollar At A Time

Norm Coleman finally got around to filing his appeal of the three-judge panel's ruling that Al Franken won the Minnesota Senate election by 312 votes. It's funny that he and his lawyers stated their intention to appeal for months, and only got around to it seven days after the ruling. Why, it's as if they were intentionally dragging their feet to delay the seating of Senator Franken!

The filing is here. And I liked this question from the Minnesota press:

St. Paul Pioneer Press reporter Jason Hoppin asked what made Coleman think the ballots he wants opened and counted would break his way, when batches of ballots opened during the recount and the election contest trial favored Franken.

After commenting that “you guys like asking this question don’t you, Jason?” Ginsberg said absentee ballots opened since the election have been more from precincts that favored Franken than Coleman. The ballots Coleman wants counted come from precincts that favored him, Ginsberg claimed.

Except Franken has consistently won absentee ballots regardless of the district.

To this point, the protracted court battle has worked out pretty good for Norm Coleman and the Republicans. For a relatively low price, Coleman has denied Democrats a 59th seat in the Senate, with little additional consequence. Until now. This is an ingenious idea from Adam Green.

Recently, I critiqued the DSCC's "petition" asking Norm Coleman to get out -- saying there was no "theory of change" about why people taking that action would have any impact.

To be constructive, I gave a free piece of advice to the DSCC on how to organize people strategically: ask people to give $1/day until Norm goes away. If Republicans in DC saw the DSCC's warchest growing by the day, their incentives would reverse -- instead of telling Norm to keep going, they'd tell him to get lost.

The DSCC didn't take that advice. But Howard Dean's Democracy for America was all about it, and partnered with the Progressive Change Campaign Committee (which I co-founded) to make it happen at NormDollar.com. Instead of raising money to help generic Democrats, we're raising it to support bold progressives in 2010.

Since Saturday, over $20,000 has been raised -- prompting news coverage in the New York Times, ABC, Politico, Huffington Post, and great support at Digby's blog, MyDD, CrooksandLiars, FDL, Senate Guru, The Seminal, The MN Progressive Project, and other blogs.

I'm sold. And you should join the NormDollar.com campaign as well. Even if Coleman continues to delay the result of the election, at least progressive candidates will get richer in the exchange.

"Done" Sounds Like A Good Idea

Joe Friedberg, the attorney for Norm Coleman in his battle to keep the 59th Democratic seat out of the US Senate admits defeat:

Q. Joe, are you done?

A. Yes, I'm done.

Q. Let me ask you in a different way. Is Norm done?

A. Well, I think that we have been trying this case with the appeal record in mind, and that's where we're going, and it's going to be a very quick appeal, and then I will know whether or not it worked.

Q. Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

A. I think that's probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was that it was a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court. So we will see whether we were right or not.

Actually their whole argument was not an argument, but a way to obstruct Al Franken's seating for as long as possible. Our deliberative judicial process allows such obstruction, but let's not kid ourselves about arguments being suitable for one court and not another. Slowly working through the process was the whole point.

So, months after the election, and several weeks after the Supreme Court trial, Coleman's own lawyer admits that his client will wind up in worse shape than before, and that he was arguing to the wrong court this whole time to intentionally set up an appeal. Since the loser pays in Minnesota courts, at least Coleman will get his money's worth on Al Franken's lawyer. Of course, while Friedberg failed in court, he did his actual job well - it's almost April and Minnesota continues to have one US Senator.

Ballot Measure Courtroom Action!

Robert Cruickshank has a good roundup of the Prop. 8 hearing in San Francisco today (so does the LA Times). Joyce Kennard, who voted to overturn the ban on same-sex marriage last May, seemed strongly against reversing the Constitutional amendment and didn't even want to take the case to begin with, so a total reversal seems unlikely. Unfortunately, the "slippery slope" argument that this would open up the ability to deny fundamental rights through ballot measures didn't seem to do much for Kennard. On the question of the 18,000 same-sex marriages already legally performed, it does look like the justices were more inclined to uphold them, which turns the whole thing into a legal quagmire IMO, because who's to say that the conferring of legal rights is just a question of when you exercise them? Robert notes a couple other points:

• Justice Ming Chin, a right-winger, implied that maybe the answer is to get the state out of the marriage business altogether. Look for that to become an increasingly popular concept, especially if Prop 8 is upheld.

• Several justices, including Chief Justice George, strongly implied that they think the constitution is too easily amended and that there needs to be some order brought to that part of the initiative process.

To that end, there is actually another major hearing going on in the state today, in Sacramento Superior Court. Various plaintiffs are suing to change the title and summary on two of the ballot measures in the May 19 special election, on the grounds that they were fraudulent and misleading. And there's already been one victory today.

The May 19 ballot measure to temporarily take money from a 2004 mental health initiative has a new overview that will be presented to voters, after a settlement to a legal challenge was reached this morning.

The challenge to Proposition 1E's ballot title and summary, and its ballot label, was centered on charges by opponents that the Legislature wrote a "false and misleading" overview, in order to make Prop 1E's redirection of some $450 million in mental health funds more palatable.

The new summary makes it more clear that earmarked mental health funds will be taken away from the voter-approved Prop. 63 and used to balance the state budget. Earlier, the weasel words "provides temporary flexibility" were used.

The other dispute is over Prop. 1A, the state spending cap. John Myers is Twittering from the courtroom, and the plaintiffs are making the same clear and obvious points about the legislature's treachery in this matter that George Skelton made this morning. The title makes no reference to the spending cap OR the extension of tax increases that was part of the deal, and the summary only alludes to the taxes near the end of the description as part of the fiscal analysis. The summary uses words and phrases like "rainy day fund" and "overspending" and "reform" in ways clearly designed to persuade the voter. Defense lawyers claim that the fleeting reference to revenue in the fiscal analysis is all that is needed, and anyway voters "already understand all the underlying budget issues" so there's no need for any changes.

As I've said, this now is starting to look more like a cover-up, which is very bad for a legislature and a Governor who aren't seen by the voters as trustworthy, and in at least the Governor's case, for good reason. If the aftermath of the ruling is a court order that the legislature deliberately wrote the title and summary in a way to obscure the truth about what Prop. 1A would do, there's your fodder for commercials for the next 2 months. And it's a potentially fatal blow.

We're awaiting a decision...

UPDATE: So here's the answer - the judge would like some of the more misleading language removed, but isn't inclined to add in big bold letters "THIS MEANS YOUR TAXES ARE GOING UP." This obviously can be exploited by whatever campaign coalesces around the No side - the "hidden tax," et al. - but it won't be on the ballot beyond the bit in the fiscal analysis. We'll see what the final language will read.

Trial Of The Century

Here in California, the big story of the day is the Prop. 8 hearing in the California Supreme Court. It starts at 9AM ET, and you can actually watch it at the California Channel. Large groups of activists will be watching the trial throughout the state, and last night there were a series of candlelight vigils.

There are three questions at play:

• Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?

• Does Proposition 8 violate the separation of powers doctrine under the California Constitution?

• If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

This is less a hearing about the Constitutional validity of a ban on gay marriage itself and more about these questions. However, the first question essentially asserts that the state Constitution cannot be amended to strip away fundamental rights (and essentially contradict another part of that Constitution). Brian Devine has a must-read on the legal issues involved at Calitics. And Attorney General Jerry Brown is arguing that the proposition should be thrown out.

Incidentally, on the side of allowing discrimination today, arguing for the measure's backers, is none other than Ken Starr.

Based on the way that the California Supreme Court works, it is likely that an opinion has already been formed.

The California Supreme Court may reveal Thursday whether it intends to uphold Proposition 8, and if so, whether an estimated 18,000 same-sex marriages will remain valid, during a high-stakes televised session that has sparked plans for demonstrations throughout the state.

By now, the court already has drafted a decision on the case, with an author and at least three other justices willing to sign it. Oral arguments sometimes result in changes to the draft, but rarely do they change the majority position. The ruling is due in 90 days.

Chief Justice Ronald M. George, who wrote the historic May 15, 2008, decision that gave same-sex couples the right to marry, will be the one to watch during the hearing because he is often in the majority and usually writes the rulings in the most controversial cases [...]

Most legal analysts expect that the court will garner enough votes to uphold existing marriages but not enough to overturn Proposition 8. The dissenters in May's 4-3 marriage ruling said the decision should be left to the voters.

One conservative constitutional scholar has said that the court could both affirm its historic May 15 ruling giving gays equality and uphold Proposition 8 by requiring the state to use a term other than "marriage" and apply it to all couples, gay and straight.

This is not the end of the fight for marriage equality, but just another marker along the road. Our Supreme Court judges here go through elections every ten years (remember that when you hear about "unelected judges"), so there are likely to be recall campaigns. And more ballot initiatives. And this is just one state in the union.

Let's hope for the wisdom of those sitting on the bench to understand the implications of a simple majority taking away the rights of a whole class of citizens.

...Pam's House Blend has a live chat of the hearings going. GLAAD has a media resource guide.