Former County Clerk Sues to Remove Misleading Language From Opposition to Parcel Tax Ballot Argument

schoolFormer County Clerk Tony Bernhard has filed a writ of mandate with the Yolo County Courts to remove portions of the argument filed by Jose Granda and Thomas Randall that Mr. Bernhard, along with current County Clerk Freddie Oakley, believes to be misleading.

At issue are two excerpts from the Argument against Measure C – the renewal of the Davis School District’s Parcel Taxes that were passed by the voters in Measure Q and Measure W.

The first passage in question is: “This mail election is a questionable undemocratic process which significantly reduces oversight to maintain the integrity of an election. It eliminates the poll workers and observers from both sides so there is a lack of independent supervision during the opening and counting the ballots. If you do not want to be financially abused and believe in fair elections, VOTE NO on C.”

The second passage reads: “”This mail election is a questionable process. It completely changes fair elections. It eliminates the poll workers and vote counting with both sides present. Ballots are opened and counted only by the elections office staff. During Measure A, 16,033 ballots were opened and counted before the polls closed.  It is time to say no more taxes and no more unfair elections. VOTE NO ON C.”

Mr. Bernhard argues that these statements are “false, misleading or inconsistent with Chapter 6 of the Elections Code (Elections Code 9500 et. seq.) because they are neither for nor against the bond measure which is the subject matter of the election. Rather this language seeks to impugn the integrity of the election process which Petitioner has spent his career upholding.”

“My understanding of the law is that the object of a ballot argument is to address the merits of the proposition and not to make comments on other civic or political issues,” current County Clerk Freddie Oakley told the Vanguard on Tuesday afternoon.

One of the odd quirks in the current law is that the County Clerk cannot herself challenge ballot language in a school board race.  So the former County Clerk has filed a writ of mandate against the current county clerk to “have language he thinks is irrelevant and false and misleading removed from the ballot pamphlet before it’s printed.”

“The law doesn’t permit me to sue myself,” the Clerk told the Vanguard.  “In a school board election I can’t.  In a county election I can ask for a writ of mandate against arguments that are false and misleading.  But only in county elections – the law is not consistent.”

Freddie Oakley said that she plans to meet with Assemblymember Mariko Yamada and request for her to sponsor legislation that would make these laws consistent.

Ms. Oakley also informed the Vanguard that neither she nor her office was not required to defend the language.  Mr. Granda and Mr. Randall are also listed as the respondents in this matter.

In contrast to the ballot arguments put up by opponents Jose Granda and Thomas Randall, Mr. Bernhard argues that “this language seeks to impugn the integrity of the election process which Petitioner has spent his career upholding.”

However, he claims, “All mailed ballot elections are conducted lawfully in accordance with California Elections Code Sections 4000-4108.”

Moreover, “Contrary to the assertions contained in these Arguments, there is no diminution or abrogation of the opportunity of supporters and opponents to observe all aspects of the election process. Observers are welcomed to observe any and all parts of the election process, including the signature verification, opening and counting of mailed ballots.”

“I honestly think that this court action serves the purpose of increasing election fairness,” Freddie Oakley told the Vanguard.  “I’m extremely grateful to live in a society where we have judges to help us interpret the law and the facts.”

In their ballot arguments, Mr. Granda and Mr. Randall argue that Measure C is not, in fact, a “renewal of existing taxes,” but rather “it is a new tax.”

“If it were a renewal, they would be asking tax payments for four more years at a cost of $1,280 ($320) per year.  Instead, this NEW TAX is for five years at a cost of $1,600,” they argue.

However, according to the Vanguard’s calculations, $1600 over five years works out to the same $320 per year that people are paying now.

They continue arguing: “You do not know exactly how much you will end up paying. The School Board tacked on an automatic increase per year based on the CPI “Consumer Price Index” which goes up every year.”

They add, “This new tax is acquiring a variable interest debt where you do not even know much the payment is going to be.”

The matter will be heard in Department 15 at 8:30 am on Thursday morning.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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13 Comments

  1. wdf1

    So the argument the opposition is trying to make is something like, ‘vote no because your ballot is probably going to be counted incorrectly’. It does seem suggestively libelous

    Vanguard: [i]However, according to the Vanguard’s calculations, $1600 over five years works out to the same $320 per year that people are paying now.[/i]

    Additionally, by my understanding of school board discussion, it is funding the same programs as Measures Q & W.

  2. FreddieOakley

    I think David Greenwald did an excellent job of describing this situation. He seemed to grasp the important facts in a heartbeat, and he certainly wrote a quick and pertinant article. Thanks D.G.

  3. JustSaying

    I’m not sure whether we should be wasting time suing about “misleading” ballot arguments. Freddie must see a host of arguments that are misleading. Most all she prints that contradict my opinion certainly are misleading or worse.

    It’s a good thing Tony’s retired and has time on his hands. Come to think about it, it may be time to do away with the expense of mailing out these documents.[quote]“Vanguard: However, according to the Vanguard’s calculations, $1600 over five years works out to the same $320 per year that people are paying now.

    Additionally, by my understanding of school board discussion, it is funding the same programs as Measures Q & W.”[/quote]Neither of these points–the [u]Vanguard[/u] calculation nor the announcement of programs allegedly being funded–change the fact that this is a [u]new[/u] tax levy (replacing two old ones) that will operate differently than the old ones and will be effective in different years than the expiring tax levies.

    Anyhow, what is the point in arguing against the Granada/Randall contention? Does it matter whether it’s a renewal or a new levy? Maybe Freddie needs to have someone sue about the misleading “renewal” argument from the YES side.

    Every one of these fights that somehow involve school levies just jeopardizes passage. There’s nothing like confusion and needless, meaningless debate to make folks less likely to vote YES for a worthy cause like this.

    Much ado about nothing….

  4. Mr.Toad

    A ballot argument should be your best stuff and a process protest is the best they could muster. But how would we know if it failed that it was because of the process? All we would know is that our kids would have a poorer experience in school.

    Vote Yes on C.

  5. E Roberts Musser

    [quote]The first passage in question is: “This mail election is a questionable undemocratic process which significantly reduces oversight to maintain the integrity of an election. It eliminates the poll workers and observers from both sides so there is a lack of independent supervision during the opening and counting the ballots. If you do not want to be financially abused and believe in fair elections, VOTE NO on C.”[/quote]

    Other jurisdictions/states have all mail ballots that have passed consitutional muster, so this argument goes nowhere…

  6. wdf1

    JustSaying: [i]Does it matter whether it’s a renewal or a new levy?[/i]

    It is an argument over semantics. The opposition would like to say that this is a “new” tax so that it might imply that rates will go up over their previous levels. If it is a vote to continue the same base rate paying for the same programs, then it is functionally a renewal or extension.

  7. E Roberts Musser

    [quote]It is an argument over semantics. The opposition would like to say that this is a “new” tax so that it might imply that rates will go up over their previous levels. If it is a vote to continue the same base rate paying for the same programs, then it is functionally a renewal or extension.[/quote]

    Interestingly the City Council wrestled with the same problem with regard to the city parks tax. Should they keep it the same, or put a CPI rider in. The CC opted to leave out the CPI for fear the tax would be less likely to pass bc of the “uncertainty” factor. And in that case, they were only talking about a tax of $49 per year for six years, with a max 3% CPI rider…

  8. JustSaying

    [quote]“It is an argument over semantics. The opposition would like to say that this is a “new” tax so that it might imply that rates will go up over their previous levels. If it is a vote to continue the same base rate paying for the same programs, then it is functionally a renewal or extension.”[/quote]What you say, wdf1, is true in its “functionally the same” concept if there is no CPI rider on the two old levies and and none on the new levy (or all three include a CPI rider). What is the fact about this issue that Granada/Randall have raised?

  9. wdf1

    JustSaying: Past parcel taxes have included an estimated inflation factor. In the spirit of conservative budgeting, these estimated inflation factors often slightly overestimated what the actual inflation rate turned out to be. A CPI-based inflation factor maintains a rate that is closer to reality.

    On the argument of new vs. renewal: The way I think of it, I purchase licenses, registrations, and subscriptions every year. In each case I “renew” my license, registration, or subscription. The fee may be the same, it may go up slightly, or in rare cases, it may go down. In that kind of context, it is common sense to think of this as a renewal.

    My view is that Granda and Randall are parsing words in the spirit of Bill Clinton (“It depends on what the meaning of the word ‘is’ is.”) Mr. Granda got up and spoke during public comment to the parcel tax discussion at the November 3 school board meeting. At that point he challenged the word “renewal” by saying that if any word is changed between the original and proposed measure, then it is a new tax (he spoke about half-way through the meeting if you want to see the video archive here: November 3rd, 2011 SCHOOL BOARD MEETING ([url]http://www.djusd.tv/content/november-3rd-2011-school-board-meeting[/url])). In fact, if you set a new expiration date, which would be required to extend any parcel tax, then he said it would be a “new” tax. By his logic, then, every year I don’t “renew” my license, registration, or subscription. I get a “new” one of each. Go figure.

    It is a waste of an argument, because it avoids discussion of the real substance of the matter. Is this Measure important enough to maintain the quality of our local schools? In fact, it is.

    If you look at what other districts have cut up to this point, on average, statewide, the students who graduate in the next 6-8 years, will not be as prepared as the students who came before. In other districts, the first science class a student takes is in 8th grade, when it gets tested for the first time in statewide standardized tests; in Davis science is offered as a standard part of the curriculum starting in 4th grade, thanks to this parcel tax. Other school districts have cut nearly all their librarians and reading specialists; you cannot keep all of your students reading at grade level without that kind of support. Other districts have cut high school counselors, so now students are completely on their own to figure out how to get college/work information, scholarships, and letters of recommendation to move to the next step in their lives. Other districts have cut their music and athletics programs, programs which give students their first real world experience in learning how to work as a team, how to perform in front of an audience, and the discipline to prepare for that performance. Cutting those programs significantly reduces the number of students who will succeed in college and later in life.

    Neither Randall nor Granda can address that question head-on (Is this Measure important to having good local schools?), because if they do then their argument more explicitly runs counter to the values of most Davis voters. So instead they throw doubt on the election process, when there has been no reason to do so.

    The problem with their ballot argument is that they have drifted away from talking about the substance of the ballot.

  10. E Roberts Musser

    [quote]The problem with their ballot argument is that they have drifted away from talking about the substance of the ballot.[/quote]

    Absolutely agree…

  11. wdf1

    [quote]
    Jeff Hudson, 1/12/12, Davis Enterprise: Parcel tax ballot arguments challenged in court ([url]http://www.davisenterprise.com/local-news/parcel-tax-ballot-arguments-challenged-in-court/[/url])

    The case was scheduled to be heard Thursday morning by Judge Daniel Maguire. But Maguire recused himself after Granda challenged his ability to decide the case. Granda noted that Davis Board of Education member Richard Harris is among Maguire’s endorsers in the judge’s bid for election on June 5.

    The case was transferred to Judge Samuel McAdam, where Assistant County Counsel Dan Cedarborg hinted at the possibility of a compromise.

    “We have some proposed compromise language that we think would meet the concerns of Bernhard and the county clerk (Oakley), rather than deleting the whole paragraph” in Granda and Randall’s ballot argument, he said.

    Bernhard told the judge that “the characterization of mail elections as questionable is just not true. Every county in California uses these processes.”

    He added that some experts contend “mail ballot elections are the most secure form,” since signatures on mailed-in ballots are individually checked.[/quote]

  12. JustSaying

    [quote]“The problem with their ballot argument is that they have drifted away from talking about the substance of the ballot.”

    “Absolutely agree…”[/quote]Which is the problem with Bernhard filing this suit and which is the problem with us agonizing over this issue for this long….

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