If Perry v. Schwarzenegger is upheld by the U.S. Court of Appeals for the Ninth Circuit, it is almost certain to be reviewed by the Supreme Court. And the outcome there very likely turns on a single Justice’s vote—Anthony Kennedy’s. There are probably four votes to strike down Proposition 8—Justices Stephen Breyer, Ruth Ginsburg, Sonia Sotomayor, and Elena Kagan—but there are also almost certainly four votes to uphold it—Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. As is so often the case on controversial matters before the Supreme Court these days, everything turns on Justice Kennedy. Which way will he rule?

In the end, Cole thinks gay rights advocates have reason to hope that the Court will do the right thing.

Kennedy wrote both of the Court’s most important gay rights decisions—Romer v. Evans, (1996) which struck down a California referendum that barred adoption of laws banning discrimination on the basis of sexual orientation; and Lawrence v. Texas (2003), which overturned a Texas law making sodomy between same-sex partners a crime.

Still, “there is also ground for anxiety. Justice Kennedy went out of his way in Lawrence to stress that whether a state could limit marriage to opposite-sex couples remained an open question.”
And, as Cole points out, the Court has a history in which it “has never let the factual record get in the way of reaching its desired result.”

Interesting piece. Give it a read, and please share your own takes in the comments section.

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Mary Salas‘s decision to seek a recount in the state Senate District 40 Democratic primary is rooted in a desire to ensure every vote counts — and the 50-50 chance that a recount will find a mistake that could change the results. As it stands, Salas trails Juan Vargas, a favorite of corporate interests, by a handful of votes. The state Secretary of State website’s election results page says the margin is 12, though Salas campaign manager Barry Klein said this morning they were told the margin is 22 votes.

Mary Salas

“With elections, you never quite know what’s going to happen at the end of the day,” Klein said. “With such a small margin, you can’t help but go forward and make sure that every vote is counted correctly. Even the smallest mistake, even though the boards of elections are doing a fantastic job, can sway something.”

It’s a long shot, says Alex Vassar, who helps run the Join California political archive when he’s not serving as floor manager for the Senate Republican Policy Office.

“Because of how elections results are recorded makes it very difficult to get a good count of how often recounts impact the outcome. Because the Secretary of State only publishes the final vote count (in the Statement of Vote, after the certification of the vote), the only time that the ‘official record’ shows recounts resulting in a changed outcome is when a seat is successfully contested. The only successful contest of an election in recent history was the Fondse/Johnston recount in 1980, which stands out because it was just that rare.”

In that 1980 Assembly race, Republican Adrian Frondse was declared the winner and sworn in, but Democrat Patrick Johnston was later declared the winner in a recount, unseating Frondse. It’s the the only time in memory that happened. But there have been a few other close shaves, according to this list Vassar sent along:

* 2008 General – SD 19 – A 1% recount was required because of how close the lead that Tony Strickland held over Hanna Beth Jackson. Vote lead did not change.

* 2006 General – SD 34 – A recount was considered, but ultimately decided against because Lou Correa had a 1,302 vote lead over Lynn Daucher.

* 2006 Primary – SD 30 – Rudy Bermudez requested a recount after Ron Calderon ended ahead in the initial vote count. Vote lead did not change.

* 2006 Special – SD 35 – Diane Harkey requested a recount of Tom Harman‘s narrow lead, which took two weeks. Vote lead did not change.

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That’s one of the races, you might recall, in which corporate interests spent a ton of money to try to get their favored candidate, Juan Vargas, into the general election, facing off against Brian Hendry, who won the Republican nomination  uncontested.

The race was too close to call on election night, and just got tighter as the vote count progressed. With all the counties reporting results to the state Secretary of State, Vargas had 24,138 votes to Salas’ 24,126 votes.

We’ll update tomorrow with some details on what the recount entails, and what history might tell us about the process.

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But apparently the California Board of Registered Nursing hadn’t been bothering with that bit of obvious due diligence, which is as easy as matching names to a database maintained by the National Council of State Boards of Nursing. As a result, some 3,500 nurses who have been disciplined in other states have been licensed to nurse in California, including several hundred who have lost their licenses elsewhere, according to this report by Pro Publica, via the Los Angeles Times.

The board finally checked its 376,000 license holders against the database after an earlier report by Pro Publica reporters Tracy Weber and Charles Ornstein (both former colleagues of mine at the Times). From their new story story:

California’s nursing board has historically done little to check whether its nurses were running into trouble anywhere. Until late 2008, the state did not require nurses, when renewing their licenses, to reveal whether they’d been disciplined elsewhere. The board checked their records against the national council’s database of disciplinary actions only when they initially applied for a California license. Board President Ann Boynton said the board now plans to pay the national council to run checks of California nurses on a quarterly basis.The risks of not checking can be serious. The Times/ProPublica investigation detailed cases in which nurses sanctioned in another state moved to California and were later accused of misconduct.

Nurse Beverley Cathey, for instance, came to California after being put on probation in North Carolina in November 2006 for failing to account for drugs she’d signed out, falsifying records and providing negligent care. Four Los Angeles-area hospitals filed six complaints against her in August and September of 2007, according to records from a temporary staffing firm that hired Cathey.

The California board did not file a public accusation against her license until August 2009, nearly two years after North Carolina indefinitely suspended her.

Regulators not regulating. Again.

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In the end, front groups for the oil, insurance, health care and pharmaceutical industries that want to see consumers and attorneys take it below the belt instead got walloped in the polls. And they spent a whole heap of money along the way.

Among the biggest losers? The Civil Justice Assn. of California and its board of corporate giants that includes BP, AIG, the California Building Industry Assn., Dow Chemical, Pfizer, State Farm Insurance and lots more.

Here’s a look at the numbers.

$60 million

(That’s how much Mercury Insurance and PG&E spent while failing to pass Propositions 16 and 17).

$2.5 million

(What anti-tort groups CJAC and Californians Allied for Patient Protection poured into showdown races).

684

(The vote lead progressive Democrat Mary Salas holds over corporation-backed candidate Juan Vargas, an insurance executive, in the 40^th Senate District primary).

10

(The number of races targeted by the Consumer Attorneys of California).

10

(The number of targeted races in which candidates supported by the Consumer Attorneys of California either won or hold the lead).

0

(The number of targeted races won by candidates supported by CJAC and CAPP).

The outcome of this election makes it clear that voters are getting canny about corporate-backed candidates and causes. In an era of BP oil spills and runaway Toyotas, the public has grown wise to the reality that corporate candidates are bent on undercutting the civil justice system to help boost the profits reaped by corporations and their billionaire leaders. The common man and woman can make a difference simply by stepping into the voting booth and making wise choices.

–Eric Bailey

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PG&E, as you know, spent more than $46 million on Proposition 16, which would have required local governments to obtain 2/3rds voter approval before establishing a public utility along the lines of the Marin Clean Energy program. The Marin program is designed to provide consumers with a conduit for receiving electricity from renewable resources, and an alternative to PG&E’s supply. PG&E had told its stockholders it planned to spend up to $35 million pushing Prop. 16 in the belief that it would be cheaper to win the statewide initiative than to fight each Marin-style local effort one by one.

Until, of course, voters see through your charade. Might be a good time for enterprising shareholder rights advocates to start challenging the wisdom of a utility spending so much of its shareholders’ money — and running 31% over budget — to push bad public policy.

On the insurance front, Mercury spent nearly $16 million trying to persuade voters that Proposition 17 was good for consumers, when in reality it would have let insurance companies charge consumers exorbitant fees if they have a lapse in coverage. Like trying to buy fresh policies after dropping insurance while in military service, going car-less in areas like San Francisco with good mass transit systems, or periods of unemployment in which people stop driving for economic reasons.

Like I said, it’s heartening to see that voters didn’t buy what those two corporations were selling. Or, rather, what they were trying to buy — their own special pieces of public policy.

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Photo of the 1969 Santa Barbara oil spill from the U.S. Geological Survey.

It took millions of dollars and a lot of years for that mess to get cleaned up, and for the coast to return to somewhat normal conditions. The silver lining: The disaster invigorated the environmental movement and helped lead to the creation of the Environmental Protection Agency.

But the oil wells are still there — the San Francisco Chronicle has mashed up a Google map showing the locations. And where there are oil wells, there’s the risk of a leak. And where there are leaks, there are squabbles about whose responsibility it is to clean it up. We told you a few days ago about the ’80s deal in which the oil companies were able to foist off on consumers a tax to feed a kitty to be tapped for cleanups, in return for limiting the coporations liability to $75 million.

So we’ve been doing the math. The disaster in the Gulf — still mostly offshore — could cost $1 billion to clean up, which would be a massive draw down on the Oil Spill Liability Trust Fund — now at about $1.6 billion. So what happens if one of the wells off Santa Barbara blows up? Will $600 million handle the cleanup? Can the oil industry be forced to pay for the full cost of its own messes?  Can the nation handle two disasters like that at once?

Worry away ….

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