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SACRAMENTO — A Sacramento Superior Court judge on Thursday barred four groups or individuals from joining a lawsuit to remove from the November ballot a politically divisive redistricting measure. On July 8, state Attorney General Bill Lockyer asked the court to require Secretary of State Bruce McPherson to decertify Proposition 77 because copies of the ballot initiative signed by 951,000 supporters are not identical to what Lockyer’s office approved earlier this year. The problem apparently resulted from an error in the office of Prop 77 proponent Edward “Ted” Costa — a discrepancy that McPherson was made aware of as early as June 10, according to a court filing. Prop 77, if approved, would take redistricting out of the hands of lawmakers and give it to a panel of retired judges, who would redraw political boundaries for the Legislature, Congress and state Board of Equalization. Asking to join Lockyer’s writ seeking disqualification were Senate President Don Perata; Assembly Speaker Fabian Nunez; UCLA School of Law professor Daniel Lowenstein — the creator of California’s political reform act and planned author of ballot arguments for Prop 77; a group called Committee for an Independent Voice; and Californians For Fair Representation. On Thursday, Judge Gail Ohanesian allowed only CFFR — formed expressly to oppose the ballot measure — to remain as an intervenor, ruling that all the other groups failed to meet the standards set out in civil procedure code requiring intervenors to have a “direct and immediate interest” affected by the outcome of the case. CFFR’s interest was “more direct and immediate” than other prospective intervenors because of the group’s need to oppose the language of a ballot argument still in question. Lowenstein’s interest, Ohanesian ruled, was not direct enough to warrant slowing what needs to be a quick turn-around on the case. All ballot arguments must be ready for a state-mandated period of “public inspection” at the Secretary of State’s office from July 26 to Aug. 15 in order to meet statutory deadlines for printing in time for the Nov. 8 special election called by Gov. Arnold Schwarzenegger. A full hearing on the Lockyer request for a writ of mandate will take place next Thursday at 1:30 p.m. — leaving attorneys in the case just days to prepare and submit their paperwork. Deputy Attorney General Vickie Whitney said she will argue at the hearing that any discrepancies between what was approved by Lockyer and what was circulated for signatures is unconstitutional and unacceptable. “The [California] constitution sets a bright-line requirement that you provide the measure initially to the attorney general, and that is the measure you are going to circulate,” Whitney said. “The measure that [Prop 77 proponents] circulated for signature was never provided to the attorney general. They utterly failed to comply with the constitutional requirement to do so.” Daniel Kolkey, a Gibson, Dunn & Crutcher partner representing Prop 77 proponents Ted Costa, Sidney Novaresi, Arthur Laffer and Jimmie Johnson, concedes that differences — “largely stylistic and immaterial” — exist between the versions that were circulated and the version Lockyer approved for circulation. He says the differences between the two versions occurred when a clerk working for Costa accidentally printed a days-earlier version of the proposition, which was then circulated. Whitney warned that allowing even subtle differences between what was approved and what was circulated will set a precedent of allowing courts to decide which measures are valid. Kolkey said that’s not a problem, since ballot initiatives “are not done by professions; they are done by citizens,” requiring courts “to make the call all the time about whether initiative petitions substantially comply with technical election requirements.” At Thursday’s court hearing, Sacramento attorney Lance Olson, representing CFFR, said there had been other problems with Prop 77 — including some apparent confusion between a redistricting initiative drive Costa began and abandoned last year — and versions of what he is seeking to have on the ballot in November. Olson pointed to a May 10 memorandum sent out by McPherson’s office to the state’s county clerks and registrars, warning them to watch for varying versions of initiative petitions and to discard invalid ones. In court papers, Olson also noted that even with the current version, proponents advised McPherson on June 10, “by way of a legal memorandum, that the circulated version, had, in fact, never been cleared for circulation.” He said the earlier snafus could become significant if there is evidence that proponents and the secretary of state were aware of circulation problems –and did nothing. “If the court decides that ‘close enough is good enough,’ then you have to ask the question of acting in good faith,” said Olson. “If you’re acting in bad faith, then you can’t come to court.”

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