Republican Meg Whitman now has a wedge issue in the California governor’s race, if she chooses to use it.
She also has a more subtle but much stronger issue: the responsibility of elected officials to defend the people’s laws.
Here’s why. The Ninth Circuit’s briefing schedule calls for the last brief to be filed by Prop. 8 supporters on November 1, 2010. The court has ordered the parties to discuss whether the proposition’s defenders have standing on their own, given that the Attorney General and the Governor failed to fight for the law in court.
But here’s the thing: come November, there will be a new Attorney General in California — and perhaps more important, a new Governor. They will probably be sworn in before the appeals are decided. And the identity of the new Governor will probably decide whether California’s elected officials are going to join the appeal. (This assumes that procedural time limits don’t prevent them from joining an ongoing appeal by intervenor defendants. I don’t know the answer to this question, but my educated guess is that there would be no procedural bar, as long as the appeal is still live.)
Our current Attorney General, Jerry Brown, refused to defend Prop. 8 and would continue this path as Governor. Meg Whitman, by contrast, was a Prop. 8 supporter. Presumably she would move to join the appeal if elected.
And that could moot the whole standing issue.
The question for Whitman now is whether she wants to make an issue out of this. Prop. 8 won by a margin of 52% to 47%. And polls show increasing support for gay marriage as time passes. Who knows what a current California poll would say? (I’m sure we’ll learn soon.)
But regardless of how the polls look, Whitman should push this issue hard — and in doing so, should focus on another message: the responsibility of elected officials to uphold the laws. She could make this a broad-based issue — taking other more popular propositions as examples, and making the point that as Governor, it would be her duty to fight for the people’s laws in court, regardless of her personal views.
Jerry Brown won’t fight for your laws. Meg Whitman will.
That should be the message.
Let’s see if she delivers it.