Here in California, we have been waiting since election day to find out who will replace Jerry Brown as our next attorney general. The race has been a nail-biter, with the lead see-sawing between pro-marriage equality Democrat Kamala Harris and Republican Steve Cooley. Provisional and vote-by-mail ballots are still being counted, however it looks like Kamala Harris has definitively pulled ahead. I have been following the race via the facebook page of Los Angeles City Councilman Eric Garcetti, who has been providing a fascinating and detailed analysis of the vote-counting. Garcetti finally called the election for Harris yesterday.
The race has some implications for the Perry v. Schwarzenegger case. Readers will recall that current AG Jerry Brown and Governor Arnold Schwarzenegger declined to appeal Judge Walker’s ruling in favor of marriage equality on behalf of the state of California, which means there is now an issue as to whether anyone has standing to appeal. As Constitutional Law scholar David Cruz explained in a post for our blog, if no one has standing to appeal, the case will end with Judge Walker’s ruling intact and marriage equality restored to California. The Ninth Circuit Court of Appeal is set to hold its hearing on the standing issue on December 6, 2010. (C-SPAN will broadcast it.)
Whereas Harris promised during the campaign not to defend prop 8, Cooley said he would. Although the consensus among my lawyer friends and me is that it is too late for a new AG to appeal Judge Walker’s ruling, I nevertheless think a Cooley victory would have the potential to create some mischief. On the one hand, if the Ninth Circuit were to deny standing to the proponents of prop 8 while Cooley were AG, the pro-prop 8 crowd could make political hay out of his inability to intervene. On the other hand, if the Ninth Circuit were to grant standing and allow the case to continue, Cooley could write an amicus brief that could have some sway with the court.
The bottom line is that it is good news that Harris is poised for victory. If she wins, this entire issue will be moot. California will have elected by popular vote an AG who publicly took the position that she would not defend prop 8. The anti-marriage equality crowd will not be able to argue that California’s failure to appeal was due to an accident of timing. Go Kamala!