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It’s dangerous to overreach. Hitler and Napoleon learned it in Russia. Roosevelt learned it with the Supreme Court. The Clintons learned it with health care. The cost of overreaching was evident in Tuesday’s voting as well. Two California ballot initiatives — one that succeeded and another that nearly did — can be seen as the result of overreaching by plaintiff attorneys and by prosecutors. The result of the presidential election, too, might owe to overreaching that started in San Francisco. But let’s begin with Prop 64, the initiative that imposes limits on the state’s unfair competition law. A ballot initiative targeting Business & Professions Code [ SECTION SYMBOL] 17200 has long been the tort reformers’ boogeyman. For years, they have warned that if abusive 17200 actions didn’t stop, they would launch a ballot measure to curtail the law. The plaintiff bar ignored those warnings. It was hard to imagine that voters — who are, after all, consumers — would scale back a consumer protection law. So plaintiff lawyers continued bringing unfair competition claims against the universe — everyone from military contractors and casinos to nail salons and ethnic video stores. It seemed that every piece of business litigation in California had to include a 17200 claim, the sole exception being Rudy, Exelrod & Zieff’s historic, $200 million overtime class action. And they got sued for neglecting to include one. Moderate elements of the Democratic Party tried to broker a legislative compromise, but the plaintiff bar would have none of it. Instead of agreeing to moderate reforms, legislators backed by the Consumer Attorneys fired back with a bill that would have broadened the law. Attorney General Bill Lockyer, meanwhile, proposed to solve the problem by cracking down on a couple of two-bit operators. Now, 17200 has been gutted. The same pattern almost prevailed with Prop 66, the measure designed to limit California’s Three Strikes and You’re Out law to non-violent crimes. The Three Strikes law has helped rid California of thousands of hardened criminals. But it also has swept up a lot of low-level habitual offenders. The truth is that when voters passed the law in 1994, in the wake of the Polly Klaas kidnap-murder, their focus was on violent crime. Some district attorneys — Terence Hallinan, Kamala Harris, Tom Orloff, Steve Cooley — have understood this. But most have not. As a whole, the DAs of the state have fought tenaciously to wield the law as broadly as possible, to limit judicial power over marginal Three Strikes cases, and to circumscribe the Eighth Amendment safety valve. So the voters almost rebelled. But fortunately for prosecutors, the drafters of Prop 66 overreached too. Instead of focusing exclusively on new Three Strikes prosecutions, the drafters also called for the release of all non-violent Three Strikes defendants previously convicted. This made the initiative vulnerable to scare tactics and to the charge that it was designed to benefit a wealthy proponent’s Three-Striker son. The measure fell just a few percentage points shy of passing. This wasn’t the only overreaching that factored into the election. Eight months ago the city of San Francisco began granting marriage licenses to same-sex couples. To many of us here in the Bay Area bubble, it was a wonderful moment. But some activists who had been painstakingly building the path to legal gay marriage worried that it was too much too fast. “Now is not the time,” Rep. Barney Frank told the Washington Post in March. “When you’re engaged in a political fight, if you’re doing something that really, really, really makes you feel good, then it’s probably not the best tactic.” On Tuesday, Frank may have been proven right. Eleven states passed ballot initiatives to ban same-sex marriage. One of them was Ohio, where the measure was passed with a 62-38 percent vote. It’s conceivable that the measure drove enough conservative Ohioans to the polls to make the difference for George W. Bush in the presidential contest — with provisional ballots still being counted, Bush leads in Ohio by little more than 136,000 votes. So same-sex marriage now becomes a 100 percent toxic political issue for the foreseeable future. No U.S. Supreme Court shaped by President Bush will find a constitutional right to gay marriage. The state courts, meanwhile, will likely take their cues from the overwhelming public statement, even if it was made almost exclusively in “red states.” So the next time you find yourself frustrated with incrementalism, with leaders who counsel prudence, with consensus- building and pushing issues gently –remember what happens when you overreach. — Scott Graham

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