California’s high-profile federal
lawsuit against Proposition 8, which begins in court on January 11,
appears to be about creating a federal case for same sex marriage.
But in fact, much more is at stake. Lurking in the shadows of this
case is a breathtaking expansion of judicial interference with
perfectly valid elections. Whatever your views about Proposition 8,
we surely should be able to agree that special interest groups can’t
go into court to overturn elections they don’t like.
Ted Olsen and David Boies want to
convince the court that the alleged anti-gay bias of Proposition 8
supporters should invalidate the election. But first, they have to
find some such bias. This is why Olsen and Boies sought the trial
court’s permission to demand confidential campaign documents. They
want free reign to rummage around through the Prop 8 campaign’s
computers and filing cabinets, looking for evidence of this supposed
meanness. The trial judge had ruled that Prop 8 proponents had no
First Amendment privilege, and therefore had to hand over all
communications among members of the campaign and their contractors.
The Ninth Circuit Court issued a
preliminary order against the enforcement of these outrageous
demands. While this is a welcome development, it is only a temporary
reprieve for the integrity of the electoral process. The Ninth
Circuit should completely overrule the trial court.
I happened to know about this because I
received a subpoena from Boies’ office. I was a consultant to the
Prop 8 campaign. I have not the slightest concern that anyone will
find any evidence of hatred hidden in my correspondence. My views are
all over the internet. It is the pettiness of Olsen and Boies I find
revolting. Out of over US$40 million spent by the Yes on 8 campaign,
I was paid a grand total of $10,000. If they can harass little old
me, nobody is safe.
But more importantly, people’s
motives are completely irrelevant to the validity of an election.
Think about Obama’s election. Some people voted for him because,
after careful study, they agreed with all of his policy ideas. Others
held their noses and voted for him, even though he is not nearly far
enough to the left for their liking. Some wanted to see a black man
as president. Some no doubt voted for him because they like his wife,
or because Oprah told them to. Amongst the millions of people who
voted for Obama, were surely some who hate white people and others
who have a visceral, irrational hatred of Republicans.
None of this has the slightest
relevance to the legality of Obama’s election. The motives of the
voters, no matter how venal or exalted, no matter how petty or
profound, are completely immaterial. Obama won in a legitimate
election, with exactly the same percentage of the vote that
Proposition 8 had: 52% to 48%. No court in the land should have the
authority to look over the shoulders of campaign managers and voters
to see if their motives pass some ideological litmus test.
The motives of the seven million
Californians who voted Yes on 8 are irrelevant. The election was
about adding 14 words to the California Constitution. The entire
state of California knew perfectly well what those words were. The
point of the campaign was to discuss the likely impact of those
words. Olsen and Boies don’t like what the voters decided. Sorry.
Self-government is about abiding by the results of lawful elections,
whether you like the outcome or not.
Political professionals of all parties
and persuasions should be completely outraged by this judicial foray
into mind-reading. The rules you create against your opponent today
can be used against you tomorrow. Everyone involved in politics, as a
professional, spectator, or voter, has a stake in the outcome of this
foray into legally sanctioned harassment. The Ninth Circuit should
protect the integrity of the electoral process by completely
overturning the trial court’s ruling.
And no one, gay or straight, left or
right, Republican or Democrat, should support the Olsen and Boies