The decision by California’s attorney general, Kamala Harris, to go to court to try to stop a controversial proposed ballot initiative that calls for the legalized execution of gay people may be a mix of political pressure from legislators and campaign savvy as she continues her bid for the US Senate, according to those familiar with the situation.
“It’s not about the winning,” says Loyola law professor and election law expert Jessica Levinson about Harris’s decision to go to court. “She may feel that this is morally the right thing to do, but I think this is more of a move to impress upon everyone that you have left no stone unturned.”
Harris is a rising power in the Democratic party and has been dubbed the “female Obama”. While her sights are set on filling the Senate seat soon to be vacated by Barbara Boxer, supporters have mentioned the White House as a possible future for Harris. But for now, her challenge is to define herself personally and politically to the California electorate – a recent USC Dornsife/Los Angeles Times poll found that more than half of the state’s registered votes did not know who she was.
But since the “sodomy suppression” act became news last week, her name has made headlines, mostly highlighting her legal duty as attorney general to write the title and summary of the heinous initiative and her inability to quash it.
State legislators, however, have been seeking ways to address the act. Two Democratic assembly members – Evan Low and Richard Bloom – have introduced an amendment to a bill, AB 1100, that would increase the filing fee on initiatives from $200 to $8,000. A fellow Democratic assembly member, Anthony Rendon, is also planning a bill that would make signatures gathered on initiative petitions matters of public record.
But it was the assembly speaker, Toni Atkins, also a member of the LGBT caucus of the California state legislature and a champion of equal rights, who worked behind the scenes to encourage Harris to move forward with a legal strategy. According to Atkins, her office has been actively researching the option of a legal intervention for more than a week despite initial reports that Harris’s hands were tied, and this week she presented the attorney general with a legal opinion that outlined the possible court intervention. The two offices have been in close contact over how best to proceed, and yesterday Harris filed suit in Sacramento County superior court.
“I felt that personally I couldn’t let it stand,” said Atkins. “For weeks I have looked at this and thought of this and read everything … you have to respond on things like this.”
Atkins added that she was “thrilled” the attorney general had filed the case. “I think it says something that our state attorney general understands that this should not have happened.”
But, she added, her office was planning to go to court on its own had the attorney general declined to do so. “Had she not, we were prepared to move forward,” said Atkins.
Rick Zbur, executive director of Equality California, a statewide organization that fights for civil rights, said his office had also been in touch with the attorney general. And while leaders in the LGBT movement might have been willing to wait for the initiative to fade away, it was a huge topic of concern to the general community – an active voting block that has been supportive of Harris. “Individuals in our community are very focused on it and found it very offensive,” he said. “It’s important that community leaders respond to these kinds of things.”
That refrain of a demand for immediate response may have been key in Harris’s decision to move forward with a legal case that many experts say has a slim chance of success. Traditionally, courts have been hesitant to insert themselves into the initiative process, viewing it as a right of voters and preferring to weigh in after an issue becomes law. That’s especially true of measures like this one that are unlikely to ever become law.
Overall, about 90% of initiatives that are filed never collect enough signatures to make it on to the ballot, according to UC Davis law professor Floyd Feeney. “From a purely legal point of view, there is little reason to do anything about this,” he says.
But there “absolutely have been cases where things have been kicked out of the initiative process”, by the courts, says Levinson. Last year, she points out, the California supreme court ruled to keep Proposition 49 – a measure promoted by the California legislature that urged Congress to create a constitutional amendment to overturn the Citizens United decision – off the ballot. While that case presented different issues for the court, it was a pre-election intervention into the initiative process, she says. But if Harris were successful, it would be setting a new precedent.
“This is actually the case to take if you want to create new precedent because it is so egregious, so utterly reprehensible in every way,” says Levinson. “Do you really want to be the judge that says, ‘yes, we can allow the kill the gays initiative to move forward?”
That possibility of success coupled with the political picture makes a day in court a public relations win for Harris, no matter what the outcome.
“Our attorney general has very strong political instincts,” says Levinson. “I think it would be politically popular for her to do everything within her power. I think she is very cognizant of that. If I were Kamala Harris, yeah, I would probably try to do something.”