Education Matters: The question of ballot language legality

Many ballot statements for local tax measures presented to voters last November were illegal, according to a letter signed by a coalition of 22 individuals statewide.

The group challenged the legality of ballot language in San Diego County and 34 additional California counties.

Dated November 28, 2018, the letter pertaining to San Diego County was addressed to Michael Vu, San Diego County Registrar of Voters, and to Thomas Montgomery, San Diego County counsel.

The subject was a “demand not to certify elections due to offenses against the elective franchise.”

Of the 20 measures challenged, 11 were school bond measures – 10 of which passed. Only Bonsall’s Measure EE did not pass.

The approved measures included Del Mar Union School District’s MM, Carlsbad Unified School District’s HH, and San Diego Unified School District’s YY.

Other referenced school bonds that passed were for Santee, Sweetwater, Borrego Springs, Mountain Empire, Vista, South Bay and Chula Vista.

Each of the ballot statements of the measures cited, the letter states, “contains one or more points of non-conformance.”

Ballot statements are the questions that appear on each voter’s ballot that ask if the governing agency, in this case the school district, shall issue XXX millions of dollars in bonds.

The letter states, “By not conforming the ballot statements to the law, you have permitted the school and college districts (and other taxing agencies) to deceive the voters about the nature of the underlying measure.”

The purpose of the legislature’s mandatory requirements, according to the letter, is “to improve disclosure and end deception.” The “printing and circulation of non-conforming ballot statements is an offense against the elective franchise and subject to criminal sanctions.”

For Del Mar’s Measure MM, the following complaints were charged: uses argumentative language, not phrased in the proper form, omitted maximum rate of interest, and “objectively false or deceptive statement in synopsis.”

For Carlsbad’s Measure HH, the same complaints as Del Mar’s were charged, plus two others: “language to create prejudice for the measure” and “no duration of the tax to be levied.”

For San Diego Unified’s Measure YY, the same complaints as Del Mar’s were charged, plus three others: “use of bullet points to create prejudice for the measure,” “use of title to create prejudice for the measure,” and “word count of 81 exceeds the statutory limit.”

Other measures had similar objections, except for exceeding the word count limit which is 75. That was unique for SD Unified.

Each objection was supported by references to elections code and education code laws.

For ballot measures that intend to impose a tax increase, Elections Code ELC 13119 states that the ballot statement (question) must include “the amount of money to be raised annually and the rate and duration of the tax to be levied.”

ELC 13119 also states that the ballot statement must be “a true and impartial synopsis of the purpose of the proposed measure, and shall be in language that is neither argumentative nor likely to create prejudice for or against the measure.”

Prejudicial language in the ballot question, complainants would say, might include such terms as: upgrade classrooms, support student achievement, prepare students for college, improve safety and security, fix deteriorating facilities, support science and math, and repair schools.

Education Code 15122 states that the maximum rate of interest must be included in the language.

The letter also charged San Diego County counsel with failure to provide impartial analysis, saying what was written “is merely a regurgitation, often using direct quotations, of language from the measure itself or from the tax rate statement.”

The effect of this, according to the letter, is that voters “who read the Impartial Analysis are misled by a putatively authoritative source.”

Prior letter

A prior letter challenging the legality of school bond measures slated for the Nov. 6 election was sent on July 30, 2018 – before the August 10 deadline for governing bodies to submit final text to the registrar’s office.

The July 30 letter acknowledges that it is being sent “prior to the statutory filing deadline for local ballot measures.”

It was addressed to Vu, Montgomery and all five members of the San Diego County Board of Supervisors.

The signers claimed specific ballot measures did not conform to the “mandatory requirements of the elections code and the education code” and asked the registrar and county to reject non-conforming ballot statements.

According to the July 30 letter, “The burden to provide a qualifying measure or a conforming ballot statement is on the governing board requesting your services.”

Those governing boards, school boards in this case, cannot require the county registrar to perform election services but can only make a request to consolidate a school measure on the ballot, states the letter.

The signers acknowledge that the registrar’s office does not have the authority to modify ballot statements but can, however, “reject non-qualifying measures and non-conforming ballot statements.”

Specific objections listed were:

The maximum rate of interest at which the authorized bonds can be sold is not stated. “The purpose of the requirement is disclosure. Can a lender avoid disclosure of the interest rate due on a loan?”

 “Using phrases like ‘while bonds are outstanding’ or ‘through maturity’ are clever ways to avoid letting the public know how long the taxes will last.” This violates Elections Code 13119 which requires “a duration, either a quantity of years, or the year of last maturity for the bond issue.”

Use of prejudicial language in the ballot statement is not impartial and is designed to influence voters to support the bond. Examples include words and phrases such as: leaky roofs, student safety and security, asbestos, deteriorating, inefficient, necessary, outdated, aging. The phrase “leaky roofs” appears repeatedly, the letter states, creating an image of students sitting in classrooms with water dripping on their heads. “Any school district that didn’t repair leaky roofs when discovered would be grossly negligent.”

 The requirement to provide a list of specific projects is often phrased such that every conceivable type of project is listed. Projects are often defined as “examples” and “without limitation” – and districts are given discretion to “implement projects on an ‘as needed’ or ‘as required’ basis, or permit alterations of listed projects. “By including everything, including, literally, the kitchen sink, in the boilerplate, districts achieve the goal of being able to spend the money on anything they may later wish to buy and then point to a word or phrase that justifies it.”

 Bond counsel is part of what the signers call the “school bonds cartel,” referring to “the industry that has grown up around the electioneering, passing and spending of the proceeds of school bonds.” The letter claims that “bond counsel’s stake in the outcome of the election is a conflict of interest” because many in the school bonds industry have a financial interest in assuring passage.

The postscript on the July 30 letter reads: “We deem the failure of public officials to respond in writing to legitimate public concerns a marker of a culture of public corruption.”

Signers of the July 30 letter included 11 individuals connected to San Diego County school and community college districts, including four individuals from SD Unified, one with ties to Sweeetwater Union, one from Cardiff, two from Fallbrook, Priscilla Schreiber from Grossmont Union, Michael Robertson (Del Mar Union and San Dieguito Union), and Richard Michael from the California School Bonds Clearinghouse.

Only Michael Robertson and Richard Michael also co-signed the Nov. 28 letter. Sally Smith, activist from the San Diego Unified School District, signed onto the Nov. 28 letter but was not a signer of the July 30 letter.

Demands ignored

Both letters, Michael Robertson said, were ignored. No response was received, the ballot language was printed just as submitted by the school districts, the election took place, 10 of the 11 school bond measures challenged were approved by voters, and the results were certified.

“They are not doing what they are required to do,” Robertson said, referring to the Registrar of Voters office. “They need to enforce the law.”

Robertson is convinced that many people don’t realize they are voting to increase their taxes, due to deceptive ballot wording.

Furthermore, many taxpayers don’t even see their tax bills if mortgage companies handle property tax payments. As a result, they often don’t know how much they pay in taxes for school bonds.

Should the registrar have rejected any nonconforming ballot language, as requested in the July 30 letter? Should the election results not have been certified, as requested in the Nov. 28 letter?

Prominent San Diego attorney Robert Ottilie says no. He’ll explain in next week’s column.

Opinion columnist and Sr. Education Writer Marsha Sutton can be reached at suttonmarsha@gmail.com

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