In recent years political smearing and outright lying have come to dominate campaigns in California. Candidates are spending less and less time discussing important issues and their own qualifications and more and more time telling falsehoods about their opponents.

Although the above quotation sounds as if it could have been written today, it was in fact penned more than three decades ago as part of the successful ballot argument in favor of California's Proposition 20.  As a result of the electorate’s approval of Proposition 2o, the California Constitution now provides that no person who is found liable in a civil action for making libelous or slanderous statements against an opposing candidate during an election campaign shall retain the seat to which elected when it is judicially found that:

• the libel or slander was a major contributing cause in the defeat of an opposing candidate, and

• the statement was made with knowledge that it was false or with reckless disregard of whether it was false or true.

Cal. Const. Art. 7, § 10.

Amazingly, this provision would remove someone from office even when he or she did not actually print a libelous statement or utter a slanderous word.  Under this provision, a libelous or slanderous statement is deemed to have been made by a person if that person either actually made the statement or if the person actually or constructively assented to, authorized, or ratified the statement. Constructive assent is not defined, leading to the possibility that failure to disavow another’s statements will be construed as constructive assent.

An office holder is removed only when “the libel or slander was a major contributing cause in the defeat of an opposing candidate”.  The Constitution requires that the trier of fact make a separate, distinct finding on that issue but provides no guidance on how such a determination might possibly be made.

Finally, there are the obvious First Amendment concerns.  However, there are no reported decisions either interpreting it or evaluating its constitutionality even though Article 7, Section 10 has been part of the California Constitution for more than three decades.