December 01, 2006 @ 2:33 PM  modle=articles&func=display&aid=1326&ptid=9

One of the fascinating sub-stories of the November election is the demise of Proposition 90. Not the fact that the voters rejected the initiative itself — which was terribly flawed, poorly drafted, and opposed by basically every interest group in the State — but rather that property rights advocates fumbled such a golden opportunity to pass reasonable eminent domain reform. Think about what the Prop 90 crowd had going for them: (1) the visceral public outrage to the Supreme Court’s decision in Kelo v. City of New London (which permitted a Connecticut city to seize residential property and transfer the land to a private developer to build condos, a hotel and a commercial component); (2) a clear, easy to understand campaign message that resonated with Democrats, Republicans, and Independents alike (i.e., “don’t let the government take your home”); and (3) an angel investor (New York Real Estate Mogul Howard Rich) who, through an intricate web of advocacy organizations, was willing to fund practically the entire campaign.

It is no mystery that the Prop 90 proponents squandered this constellation of good fortune by overreaching. Instead of narrowly tailoring the measure to restrict government seizures of private property for private development — the core issue that set of the Kelo firestorm — Prop 90 included a poison pill provision requiring local governments to compensate property owners for any law or regulation that could possibly de-value private property. In other words — litigation hell, not to mention potentially crippling local governments’ ability to control local planning and to protect the environment. As a result, the very broad and diverse “No coalition” (which included the California Taxpayers Association, AFL-CIO, Chamber of Commerce, Sierra Club, the Governor, and Senator Boxer, to name a few) made for all kinds of strange bedfellows.

Recently, the Howard Jarvis Taxpayers Association announced that it will go back to the electoral well one more time and place a new property rights initiative on the 2008 ballot. Eminent Domain Reform 2.0 (officially dubbed the “California Property Owners Protection Act”) will shed some of the excesses that torpedoed Prop 90 and focus on prohibiting government seizure of private property for private development. Sounds more reasonable. But the political question is, can such an initiative pass after the Prop 90 debacle? First, voters don’t like sequels (just ask the proponents of Proposition 85). Second, by the time the 2008 election rolls around, the Kelo decision could be a distant memory to all but lawyers and city planners. As voter anger shifts to the next issue du jour, property rights advocates will have missed their political window of opportunity. One thing is for sure, the initiative better be airtight –- no loopholes, drafting flaws, or questionable provisions –- or the opposition will have an easy time scaring away voters by conjuring up the ghost of Proposition 90. The No campaign probably won’t even need Robo-calls from Robert Redford this time around. Simply borrowing Planned Parenthood’s “No … Again” slogan, used effectively against Prop 85, could do the trick.

The bottom line is that while the new eminent domain initiative may be a substantive improvement over Prop 90, it could face an uphill battle at the ballot box. Rather than irritating the voters with what will probably be perceived as a repeat initiative, the Howard Jarvis folks should focus on a Legislative solution.