Kamala Harris might be in for a surprise in November

Atty. Gen. Kamala Harris urges funds for tracking prescription drugsIn the wacky world of California politics, it’s a virtual certainty that no Republican will make it past the June 7 primary in the race to succeed retiring U.S. senator Barbara Boxer. California attorney general Kamala Harris has a comfortable — but not overwhelming — lead over fellow Democrat Loretta Sanchez, a congresswoman from Orange County. Three Republican candidates trail far behind. Due to California’s unusual election rules, the top two vote-getters in the primary — regardless of party affiliation — will face each other in November. If the current polling stands, the general election to fill the senate seat Boxer has held since 1992 will likely be a contest between two liberal Democrats: Harris (now at 27 percent) and Sanchez (at 14 percent).

The most popular Republican currently in the race — with a scant 5 percent in the polls — is Ron Unz. A gadfly businessman-activist and former 1994 gubernatorial candidate, Unz espouses an eclectic platform that includes raising the minimum wage to $12 an hour, restricting immigration, and challenging the science behind “climate change.” Unz, who admits that his primary reason for running is to head off efforts to repeal Proposition 227, the 1998 ballot measure he championed to dismantle California’s ruinous bilingual education system, has the endorsement of Ron Paul. Former California Republican Party chairman George “Duf” Sundheim, a Bay Area attorney, languishes at 2 percent. The previous Republican “frontrunner,” GOP state assemblyman Rocky Chavez, who had been polling in the single digits, dropped out in February due to fundraising difficulties.

The Democrats’ poll rankings have remained relatively steady for months, despite the millions raised and spent by Harris. Demographic shifts and an exodus of middle-class voters have turned California into a one-party state. In statewide races, the GOP has become irrelevant; Republican candidates regularly lose by over a million votes. Accepting the “lesser-of-two-evils” reality of California politics, the right-leaning Orange County Register recently endorsed Sanchez, largely because of her opposition to the Iraq War, USA PATRIOT Act and the $700 billion bank bailout.

It’s a testament to liberal hegemony in California that Sanchez is considered a moderate. She has a 100 percent score from Planned Parenthood, a zero rating from the American Conservative Union, an “F” from the National Rifle Association, and a record of voting with Nancy Pelosi (when she was House speaker) 97.8 percent of the time. Sanchez has taken flack for her suggestion — based on experts’ estimates — that between 5 and 20 percent of American Muslims are potential radicals who support the establishment of an Islamic caliphate. Her statement, issued in the wake of the San Bernardino terrorist attack in December, was immediately (and predictably) criticized by the Council on Islamic-American Relations and other Muslim groups. Harris, by contrast, has called opposition to resettling Syrian refugees “purely anti-Muslim rhetoric.” “We have to embrace our Muslim brothers and sisters wherever they are and not assume that because of the God they pray to and believe in that they are terrorists that are going to harm us when they come here,” she declared in a recent debate.

Given the Left’s dominance in California, Republican Sundheim’s warning that the stylish Harris is an unprincipled tool of the public employee unions, trial lawyers and environmentalists — not to mention an enemy of law enforcement — won’t have much effect on her support among Democrats. She is a popular two-term attorney general and the media’s darling. Her record as a consumer advocate who favors gun control and comprehensive immigration reform has great appeal to her party’s core voters.

In the final weeks of the primary campaign, Harris and Sanchez will campaign as the unabashed liberals they are, almost certainly finishing first and second in a crowded field of 34 candidates. November, however, may be a different story. Harris, who will out-poll Sanchez in June, could nonetheless lose in November. Sanchez has several advantages heading into the general election. Southern California’s large Hispanic population will likely turn out for her. Moreover, Golden State Republicans, having no candidate of their own to support, will be forced to choose between Harris and Sanchez. GOP voters in California are a minority but they still number in the millions. In a presidential election year, they will turn out in force. Expect them to vote for the least liberal of the Senate candidates on the ballot — Loretta Sanchez.

The Battle of Mount Soledad

Atop San Diego’s Mount Soledad — an 822-foot hill overlooking the seaside village of La Jolla — sits a 29-foot concrete cross. Erected in 1954 to commemorate Korean War veterans, the cross is part of a 170-acre, city-owned park offering breathtaking views of the Pacific coastline. For 35 years, it sat unmolested. Then, in 1989, an atheist named Philip Paulson, represented by the American Civil Liberties Union, filed a federal lawsuit alleging that the display of a cross on public land was an unconstitutional establishment of religion. Paulson died in 2006, but the litigation he began continues to this day.

The Mount Soledad case is a microcosm of the American culture war, with lawsuits used as weapons, federal courts serving as the battleground, and activist judges allying with the ACLU. The secular left has long sought to purge religious symbols and imagery from the public square, and the Mount Soledad cross was an inevitable target on a list that included nativity scenes, Ten Commandment displays, and religious invocations at public meetings.

In 1991, a federal district court judge ruled in favor of the ACLU’s claim that the presence of a privately funded cross on public property violated the California constitution’s establishment clause. The U.S. Ninth Circuit Court of Appeals rubber-stamped the district court’s decision in 1993. The city of San Diego faced a dilemma. The U.S. Supreme Court does not have jurisdiction over disputes involving state law, and the California Supreme Court does not have jurisdiction over federal court litigation. The liberal Ninth Circuit was the final word, with no further appellate review. As is typical in “civil rights” cases, the ACLU won substantial attorneys’ fees, thus creating a cottage industry and ensuring that the ACLU’s “pro bono” litigation would continue as long as the cross remained in place.

Rather than bulldoze the cross, the city decided—with the support of 76 percent of voters in a ballot referendum—to sell the land under the cross in order to remove any unconstitutional “taint.” After some legal skirmishing, the city held a sealed-bid auction to sell a half-acre parcel surrounding the base of the cross. The successful bidder wouldn’t be required to retain the cross, though the property would have to be used as a war memorial, and the buyer would be responsible for all future maintenance costs. The Mt. Soledad Memorial Association won with the highest bid of $106,000. This should have put an end to the dispute, as the privately erected cross was now standing on private property. The association expanded the memorial, adding features honoring individual veterans, such as bollards, engraved paving stones, and more than 3,000 commemorative plaques.

Remarkably, Paulson and the ACLU challenged the auction’s legitimacy. The same district judge who ruled in his favor in 1991 rejected the complaint, but Paulson appealed. In 2001, a three-judge panel of the Ninth Circuit unanimously affirmed the district court ruling. But Paulson still wasn’t finished. He sought an en banc hearing, an extraordinary procedure for correcting internal conflicts among panels. His persistence paid off. In 2002, the Ninth Circuit invalidated the auction by a 7-4 vote based on an argument Paulson didn’t even make: that it was “rigged” in favor of preserving the cross because—incredibly—any bidders wishing to remove the cross “would be saddled with the costs,” placing them at a financial disadvantage vis-à-vis bidders who intended to preserve the cross. Because the ruling once again rested on an interpretation of California’s constitution, the city couldn’t appeal the Ninth Circuit’s absurd decision.

As the city’s legal options narrowed, the cross dispute began to attract national attention. President George W. Bush in 2004 signed legislation designating the cross as a national veteran’s memorial if the city donated it, which more than three-quarters of voters approved. In the meantime, the city faced ongoing lawsuits along with the prospect of $5,000-a-day fines if officials did not bulldoze the cross. In 2006, the city obtained a stay of the removal order from U.S. Supreme Court Justice Anthony Kennedy. When a state court judge invalidated the transfer to federal ownership, Congress voted overwhelmingly to seize the cross by eminent domain, and the federal government took possession in August 2006.

Yet, litigation continued. After Paulson died, the ACLU found another atheist, Steve Trunk, to take his place. The ACLU challenged federal ownership of the cross as a violation of the U.S. Constitution, but in 2008 the district judge found that the federal government had a secular purpose for acquiring the memorial. The Ninth Circuit reversed the district court in 2011, ruling instead that even though Congress had a secular purpose for acquiring the memorial (including the cross), the primary effect was to endorse religious belief. The Supreme Court last June declined to review the case until the Ninth Circuit appeals are exhausted. Meantime, Congress—evidently not hopeful for a changed outcome from the Ninth Circuit—recently approved the transfer of ownership of the cross to the Mt. Soledad Memorial Association, repeating the strategy the city attempted without success in 1998. Even Democratic California senator Dianne Feinstein supported the bill, which President Obama signed into law this month.

The ACLU’s tactics, “secular in purpose,” resemble nothing so much as those of a religious fanatic. Its opposition to the cross is implacable. Commenting on the federal government’s transfer of ownership, ACLU lawyer James McElroy said simply: “We’ve been here before.” The Ninth Circuit’s resolve to bulldoze the cross is stymied—at least temporarily—by popular resistance to its destruction. Another quarter century of taxpayer-funded litigation may result.