Wednesday, March 25, 2015

New Political Whore on the Block: Kamala Harris

Some nutcase southern California lawyer wants to put on the California ballot an initiative called the Sodomite Suppression Act a.k.a. the Shoot the Gays Act. Among other things, it literally declares an open hunting season on gays: any, presumably straight, Californian may shoot and kill any gay person.

The California Attorney General is required to provide a title for and summary of any properly submitted initiative proposal ($200 filing fee). This must be done before the initiative's sponsors can collect the signatures (5% of registered voters) needed to get the initiative on the ballot. Initiatives must meet some simple content-neutral requirements.

The law doesn't allow the Attorney General to reject a proposed initiative because of its content. In particular the Attorney General may not reject a properly submitted initiative because he/she finds it personally abhorrent, repugnant, objectionable, potentially unconstitutional, etc. etc. An Attorney General who refuses to allow or works to prevent a properly submitted ballot initiative proposal from trying to get on the ballot is engaged in unconstitutional suppression of the First Amendment rights of the initiative's proponents.

It's unlikely that the proposed Sodomite Suppression Act initiative will be able to convince 5% of registered California voters to sign onto it so it gets on the ballot. In the unlikely event that it does, it's unlikely to be approved by a majority of voters. If it does get enough votes to pass it is certain to be challenged immediately and found unconstitutional.

Ms. Harris says:
This proposal not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society.
The claim that allowing the initiative to gather signatures "threatens public safety" is hyperbolic if not simply absurd. In any case the State cannot restrict speech on the grounds that it "may" cause some harm - that's prior restraint and is unconstitutional. As an aside, the "threatens public safety" canard is a favorite of repressive regimes worldwide to suppress dissent. 

On the proposal being unconstitutional. Ms. Harris knows better or ought to. It is the courts that make such determinations and then only on actual statutes, not potential ones. Not the Attorney General or the executive or the bureaucracy.

As to "utterly reprehensible" and "no place in civil society": the law doesn't empower the Attorney General to refuse to allow a proposed initiative simply because it offends his/her personal tastes. 30years ago if someone had wanted to put legalization of same-sex marriage on the ballot the then Attorney General might have said with almost universal public support that it was "utterly reprehensible", "has no place in civil society" and much else besides about it.

The courts are unlikely to rule in favor of Ms. Harris and she ought to know this. As a California Law Review article says:
Before the initiative measures are circulated for signatures, review is restricted to compliance with statutory requirements regarding the form of the petitions and the titles and summaries for the measures. Courts have held that state officials cannot go beyond these statutory duties to question the merits of the initiative at this stage. Thus, the only permissible action reviewable by the courts relates to these technical rules.
And the California Supreme Court stated in Brosnahan v. Eu:
As we have frequently observed, it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity.
In California, only six initiatives and referendums have been subjected to pre-election judicial review. Of these, only three initiatives have been removed from the ballot. [citation needed]

So why is Ms. Kamala Harris trying to prevent the loony proponent of the Sodomite Suppression Act from gathering signatures?

It's plain and simple political grandstanding and pandering to the outraged sensibilities of the delicate so-called liberal left. To win the hearts, minds, and most importantly the votes of gays and liberals. Ms. Harris is a political whore who has sold her integrity and sullied the office she holds by selling out free speech for political gain.

Why should we fight Ms. Harris's attempts to muzzle a nutcase?
  1. The First Amendment requires it.
    Popular, saccharine, inoffensive, bowdlerized speech and pious platitudes require no protection. Its offensive speech that deserves the most protection. The courts have recognized this. That is why laws against flag burning have been struck down.
  2. Today this nutcase, tomorrow me.
    The freedom of speech guarantees of the First Amendment are already considerably eroded. Hate speech laws are only the most obvious example of this erosion. Anti-abortion laws that dictate what a doctor may tell his/her patient seeking abortion. Loosely interpreted laws making it a crime to provide "material support" to organizations that the State has declared to be "terrorist organizations": even speaking in favor of such organizations may and has been construed as material support [citation needed]. Any Palestinian Rights activists for making fund-raising posters for Hamas?
  3. I'd rather have the nuts, bigots, and tinfoil hat jokers out in the open.
    That way I can at least try not be standing next to them when they go off.
    If the Sodomite Suppression Act is able to get the endorsement of 5% of registered voters and therefore get on the ballot then we would at least know that there are still many bigots among us and we might work to educate or eradicate them. If it gets on the ballot and then is approved by 51% of the voters that would give the lie to the belief that most Californians are for equality irrespective of sexual preference.
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