The answer may well be: whichever conclusion is more damning. And if the judge doesn't find the sponsor's motives to be sufficiently benign, the voters may well be damned. As for Walker's contention that campaign consultants Frank Schubert and Jeff Flint forfeited any claims to proprietary information because they wrote a magazine article that discussed strategy, well, the judge knows better. If you flash your ankle, you don't have an obligation to bare your thigh.
Bob Stern, president of the Center for Governmental Studies, could not think of a similar court ruling requiring a campaign to hand its strategy papers over to the opposition. Nonetheless, he mused, "There is no campaign consultant-client privilege."
"It could have far-reaching ramifications," Stern added. "It could clean up campaigns a little bit. It could drive things underground."
It almost certainly will lead to more lawsuits filed by ballot-box losers. As Proposition 8 attorney Chuck Cooper told me, "I cannot imagine that what is sauce for the goose will not also be sauce for the gander."
Call it the tort-ification of elections, as those who lose at the ballot box go for another bite at the apple through the bench. Today, it's the Proposition 8 opponents. Tomorrow, it could be environmentalists or civil libertarians.
In May, the California Supreme Court upheld Proposition 8 in a 6-1 decision. Chief Justice Ronald George wrote that the issue before his court was the "right of the people" to change the state Constitution regardless of whether "the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution."
Walker chose a different path. He will determine if the "intent" of the backers was sufficiently pure. Whatever he decides on that issue, Walker's ruling would give the campaign's losers an inside track on how the other guys won.
That's some consolation prize.
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