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SACRAMENTO — Democratic leaders will go before a Sacramento Superior Court judge on Thursday asking to formally join Attorney General Bill Lockyer’s fight to disqualify a redistricting measure submitted for the fall special election ballot. Lockyer, a Democrat, filed a writ of mandate ( click for PDF) on Friday asking the court to order Republican Secretary of State Bruce McPherson to decertify Proposition 77. The measure, if approved, would take redistricting out of the hands of lawmakers. Instead, a panel of retired judges would redraw political boundaries for the Legislature, Congress and state Board of Equalization. The measure is currently slated to appear on the ballot in the Nov. 8 special election called by Gov. Arnold Schwarzenegger. Lockyer contends that the version of the measure reviewed by the attorney general’s office for title and summary is significantly different from the version used to gather signatures to qualify the proposition. The writ is slated to be heard by Sacramento Superior Court Judge Gail Ohanesian, who was first appointed to a newly created Municipal Court seat by Gov. George Deukmejian in 1987. No hearing date has been scheduled, but a request for leave to intervene in the case is scheduled to be heard at 9 a.m. Thursday. The request was filed by Lance Olson of Olson, Hagel & Fishburn, a Sacramento firm known for representing Democratic-related issues and candidates. Olson referred all questions about the requested intervention to Sandra Polka, a redistricting expert who worked first for former Senate President John Burton and currently as a consultant for Senate President Don Perata, D-Oakland. Polka was away from her office and did not return calls Tuesday, but Thomas Knox, an attorney for Knox Lemmon & Anapolsky, the firm representing McPherson, said Olson had told him that the intervenors include Perata, Assembly Speaker Fabian Nunez and a group calling itself Californians for Fair Representation. According to information filed with the California Secretary of State’s office, Californians for Fair Representation is an active committee — one that received an initial contribution of $100,000 on June 28. That contribution came from another Sacramento-based fund, the Voter Registration and Education Fund. Knox would not speculate on the reasons for Democratic intervention, although redistricting legislative lines could end up affecting the ability of Democratic lawmakers to retain their majority. He added that McPherson would continue to oppose attempts to invalidate the initiative by “anyone, Republican or Democrat.” In a July 7 letter to Lockyer, McPherson stated his intention to follow through on his “constitutional duty to present to the voters of California the measures that have qualified to appear on the ballot by the signatures of the people” unless “directed to do otherwise by a court.” Lockyer, in his writ request, noted the duty of the attorney general to “see that the laws are uniformly and adequately enforced.” He added that a version of the ballot measure authored by proponent Ted Costa and obtained July 5 from the Yuba County Registrar’s office “does not match the text” of what was submitted to Lockyer’s office for title and summary on Feb. 3. In his court filing, Lockyer said “the defects in the process followed by proponents here are defects of substance and constitutional procedure — not defects merely as to form.” Examples of differences between the two versions of the initiative include referenceces to a retired judges being “appointed” rather than “selected.” There are also sections that refer to different numbers of days before deadlines. Daniel Kolkey, a partner at Gibson, Dunn & Crutcher who is representing proponents of Prop 77, argues that any differences that exist between circulated versions of the initiative and what was submitted to Lockyer are insignificant. “I think the case turns on whether or not the attorney general title and summary accurately summarized the initiative,” Kolkey said. “If the title and summary is accurate and does not mislead voters, there is no reason an initiative signed by the voters with an accurate title and summary shouldn’t be certified.” In a June 10 memorandum included in court documents, Kolkey wrote, “No Elections Code provision suggests that technical, nonsubstantive differences between the text of the certified petition and the draft submitted to the attorney general � alters that duty as long as the title and summary is not misleading.” The court case could have an unusual twist — attorney Kolkey is a former justice on the Third District Court of Appeal, which is where the case would go if either side were to appeal Ohanesian’s decision. Kolkey served five years on the court before leaving for private practice in 2003. Kolkey went before the appeal court in a different case last year, leading the entire bench to recuse itself. Regardless of possible appeals, McPherson and Lockyer have asked the court for a speedy resolution to the Prop 77 debate. “Time is of the essence,” wrote Lockyer in his writ request. “Because of printing deadlines of the ballot pamphlet, the attorney general will need to have this matter heard and decided, including any appeals, by Monday, Aug. 15, 2005 at 5 p.m.”

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