Concluding that “significant questions have been raised regarding the . . . validity” of the initiative seeking to split California into three states, the Supreme Court this afternoon — ruling in Planning and Conservation League v. Padilla — ordered the initiative off this November’s ballot. The court did not, however, resolve those significant questions. Rather, it asked for full briefing in advance of an oral argument and written opinion, and it left open the possibility of the initiative appearing on a future ballot if the court ultimately denies the writ petition challenging the initiative.
Today’s order is one of two likely actions we identified that the court could take. The other was denying the writ petition without prejudice to later reviewing the initiative’s validity if the initiative had passed in November. But the court, in its brief order, said that “the potential harm in permitting the measure to remain on the ballot outweighs the potential harm in delaying the proposition to a future election.”
As noted, what the court did today is what the court did four years ago with a writ petition that challenged a ballot proposition encouraging enactment of a federal constitutional amendment to overturn the United States Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission (2010) 558 U.S. 310. (Unlike four years ago, however, no justice dissented today from the ballot-removal order.) Although removing that measure from the 2014 ballot, the court eventually green-lighted the measure for the 2016 election.
An unanswered question is, if the court rules that the initiative is valid, whether the signatures that qualified the initiative for the 2018 election would allow the initiative to appear on a later ballot or whether the proponent would need to start all over gathering signatures. Of course, that question is moot if, as some experts have predicted, the court grants the writ petition and finds the initiative invalid.