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A silver lining?

No, not the wait for mail-in ballots to be counted in the Prop 8 vote. If all the numbers are true (3,000,000 outstanding mail-in ballots, a 400,000 ballot deficit) we need a 15 point advantage against in the mail-in ballots. That's pretty unlikely. Of course, once we get a report from the Secretary of State on outstanding ballots (currently the report is blank) we'll find out if any of this is even possible, much less likely. I don't expect that for days; they just got their website back up and functioning fully.

The silver lining is the ACLU's suit that the amendment initiative exceeds the boundaries of an amendment, and instead is a "revision" to the constitution. Seeing that suit win would warm the cockles of my heart. Why?

Well, "Yes on 8" burned up $40million that could have been spent by evangelicals and Mormons on other races. That's nationally significant dollars. That's more than Republican campaigns went into debt this race. Sure, "No on 8" burned up money that could have been used in other progressive campaigns, but thanks to Obama's charm and fundraising skills it wasn't needed. I would love to see all that money wasted on an initiative that was struck down.

That's not what's going to make me dance a happy dance if the courts do strike the initiative down, though. What will make me dance a happy dance is that, if the courts strike down Prop 8 on the grounds that it's a "revision" rather than an "amendment" that pretty much kills any chances future initiatives on the subject have. It raises the bar to a level that other states haven't been able to defeat, and well above the current 52% that Prop 8 could muster.

Will it happen?

I'm not going to set myself up for disappointment. That said, the courts have struck down initiatives on just these grounds; there is legal precedent.

Comments

( 12 comments — Leave a comment )
yourbob
Nov. 6th, 2008 01:47 am (UTC)
Thank you for this update. I'm finding I'm getting way too much of my information from you, though. Must find other sources (not because you're unreliable!!)

Fingers crossed.
chris_sawyer
Nov. 6th, 2008 02:16 am (UTC)
Seeing that the CA State Govt is hostile to prop 8, there is hope!
bovil
Nov. 6th, 2008 02:24 am (UTC)
The hope comes in when looking at how this argument (that it's a substantial revision, not an amendment) derives some of its basis from the CA Supreme Court decision striking down Prop 22.
(Deleted comment)
rinolj
Nov. 6th, 2008 12:13 pm (UTC)
...which motivated me, this past night, to finally compose the fan-letter I've been meaning to send him for years. Text:

Dear Mr. Newsom:

Even though we’re all sitting and expecting to hear bad news about Prop. 8, there was one glorious moment, some years back, for which I wanted to thank you: It was Friday, Feburary 14, 2004, when I drove and walked over to Van Ness, to see the couples lined up down the block, waiting for their marriage licenses.

And it was irresistible. I was nothing like these people – a suburban, middle-aged white guy in a “traditional”, heterosexual, monogamous marriage – but the joy, the rightness of the moment, the real sense of achievement and progress, were palpable. So, I did what anyone with common sense would do: I applauded, and walked around giving my best wishes.

I’m sure many other people’s work also went into that moment, but you were the one who set that into motion, who said “No, we’re going to make this happen. Not in ten years, today.” Judge Kramer, the California Supreme Court, and everyone else reacted to what you did. And it is not forgotten.

Rarely do we get the chance to do something that truly makes a difference. You did. That’s a rare and valuable thing. The setbacks of the moment will pass; what you did was one for the record-books. The history books, actually: With one bold action, you pole-vaulted straight into the ranks of the good guys.

Needless to say, you will always be welcome at my family’s table, and, when marriage is made right, my wife and I will drink a toast to your honor.


Very Best Regards,
aramintamd
Nov. 6th, 2008 05:06 am (UTC)
One can only hope.
howeird
Nov. 6th, 2008 09:06 pm (UTC)
Heard on TV this morning that the mail-in ballot counting is expected to take 2 weeks.
bovil
Nov. 6th, 2008 09:52 pm (UTC)
Not a big surprise. The validation process for mail-in and provisional ballots is much more involved.
rinolj
Nov. 7th, 2008 05:20 am (UTC)
I have seen the future, and it has a repeal in it.
March 7, 2000: California voters pass Prop. 22 (initiative statute). Statewide vote count was:

61.1% "Yes"
38.6% "No"
22.5% margin of victory

Nov. 4, 2008: California voters pass Prop. 8 (initiative constitutional amendment), with the same text. Statewide estimated vote was:

52.5% "Yes"
47.5% "No"
5% margin of victory

Elapsed time required for this near-total erosion of the victory margin: eight years, eight months.

Set your alarms for November 6, 2012 -- if the court challenge doesn't stake this thing through the heart first. The times, they are a changing.
madoc62
Nov. 7th, 2008 03:56 pm (UTC)
More analysis of the legal position
Folks,

Here's some more analysis of the legal position(s) being taken against Prop 8:

http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1226036505

Interesting stuff to read through. In particular is the analogies which essentially replace "gays" with Mormons or blacks in regard to stripping them of marriage rights.

Madoc
bovil
Nov. 7th, 2008 05:49 pm (UTC)
Re: More analysis of the legal position
That's an "equal protection" argument, and while it may be useful in establishing the degree of change to the California Constitution it's not the legal argument to be made here itself.

"Equal Protection" would be the grounds under which an argument to strike down the amendment because it violated the 14th Amendment to the US Constitution would likely be argued at the US Supreme Court, but nobody wants to take it there yet. The nice thing is that the existence of civil unions create a "separate but equal" structure, which plays nicely with the precedent created by "Brown v. Board of Education." The ugly thing is Justices Thomas, Scalia and to a only slightly lesser extent Roberts and Alito.
garwalf
Nov. 9th, 2008 07:22 am (UTC)
Money well spent
On the flip side of the fundraising, I'm still feeling good about the money I gave to the "No on 8" campaign. How often do you get the chance to fill the airwaves with queer-positive ads, all over the state? They reached people who probably wouldn't get that kind of "yes, we're people too" message anywhere else.
( 12 comments — Leave a comment )