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Polls on California Eminent Domain Ballot Initiatives Show Prop 98 Likely to Fail and Prop 99 Likely to Pass:

As this San Francisco Chronicle article indicates, recent polls show that California Proposition 98 (the ballot initiative that would meaningfully restrict eminent domain) is likely to be defeated in tommorrow's referendum. Proposition 99, the rival initiative sponsored by local governments and other pro-condemnation interest groups that only pretends to protect property rights against takings, is likely to pass. In a recent Field Poll cited in the article, Proposition 98 was losing by 43 to 33 percent among "likely voters," while Proposition 99 was ahead by 48 to 30 percent. A slightly earlier poll conducted by the Public Policy Institute of California has similar results.

If, as is likely, Proposition 98 is defeated, it will probably be a result of the combination of the sponsors' tactical error in combining the popular anti-eminent domain measure with a far less popular phaseout of rent control (a mistake I criticized in one of my earlier posts), combined with the presence of the deceptive Prop 99 on the ballot. The latter probably led voters to believe that they could protect property rights against takings without simultaneously attacking rent control.

I will post further on the lessons of this outcome (assuming that it actually happens) tommorrow or Wednesday. For now, however, the key lesson - one that should have been learned back in 2006 - is that anti-Kelo eminent domain measures can pass so long as they aren't combined with anything else that is significantly less popular. This is the second time that California property rights activists have had an opportunity to learn this particular lesson since Kelo. The first was Proposition 90 (briefly discussed in this post), which was narrowly defeated in 2006 because it combined restrictions on Kelo-style "economic development" takings with a far more controversial effort to restrict regulatory takings.

To make my position clear, I myself favor the abolition of rent control, and also think that there should be tighter restrictions on regulatory takings (though I haven't studied the regulatory takings provision of Prop 90 closely enough to tell whether I think it strikes the optimal balance on that score). However, the best should not be the enemy of the good. California is a major abuser of both "blight" and economic development takings. As the Institute for Justice, the libertarian public interest firm that litigated Kelo, concluded in a 2003 study, "California is one of the most active states in condemning properties for the benefit of other private parties." Passing a measure abolishing such takings in California would be an important victory in its own right.

REQUEST TO READERS: If you work for Field Poll or the Public Policy Institute or otherwise have access to the data from the two polls cited above, please contact me. I would like to discuss the possibility of using them in my research. I would, of course, use the data for research purposes only and would not resell it. If you can't release the individual-level data, but can only give me the complete aggregates, that would be useful too.

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