By David M. Greenwald
Davis, CA – Technically Councilmember Dan Carson is suing the city of Davis. In reality, both City Clerk Zoe Mirabile and County Clerk/Recorder Jesse Salinas are named as formalities, as they are the ones who “approve” ballot measures.
But in reality, they are not fact-checkers and have no authority nor duty to verify the accuracy of the ballot language.
Elections Code section 9295 allows a voter in the jurisdiction in which an election is to ask the court to compel the deletion or amendment of material contained in ballot arguments only “upon clear and convincing proof that the material in question is false, misleading, or inconsistent with the requirements of this chapter,” and provided that “the issuance of the writ or injunction will not substantially interfere with the printing or distribution of official election materials as provided by law.”
The arguments were made public March 11 and the action was brought on March 21. The courts have to act quickly now but the county still has time to finalize and send the ballot material within the statutory period.
Alan Pryor, principal officer in the No on DiSC campaign said in a statement he was “very surprised to learn of this lawsuit.”
“None of the citizens named in the complaint have been served with the lawsuit. Even though I am the principal officer of the No on DiSC campaign committee, I have only seen parts of the lawsuit provided to me by the media,” he said. “Based on my preliminary reading of what I have seen, however, I vigorously deny the allegations. I view the lawsuit as a deliberate tactic to suppress the rights of Davis citizens to speak out against the DiSC project and to suppress our rights to participate in a democratic process.”
Pryor added, “I am troubled that council member Dan Carson, as an elected city official, is choosing to sue Davis citizens as well as city and county election officials. I am especially concerned because Carson has been the primary negotiator with the developer and a staunch proponent of DiSC since the beginning. As a City Council member Carson must immediately disclose how he is funding this lawsuit and paying for the L.A. attorneys at a top California law firm. These potentially egregious conflicts of interest can not be taken lightly. ”
The Vanguard spoke with Councilmember Dan Carson, who ended up being the one to file the complaint.
“I wear a role as a councilmember and I wear a political hat as a council member,” Carson said. “The specific legal requirements of this statute are that you have to be a voter in Davis to have standing to sue, which I, you may have noted that I am. But also I’m the honorary chair of the campaign, so I am the logical party to make our case.”
When the ballot arguments over Measure H came out, the Vanguard noted a number of exaggerations and inaccuracies with the arguments.
The suit was filed because the supporters of Measure H believe that the ballot arguments contain “several statements that are objectively and verifiably false and/or misleading” about legally binding commitments and independent analyses for the project.
“Those analyses show that DiSC fully complies with the City of Davis General Plan, would improve area traffic conditions, and would fully offset greenhouse gas emissions to make it carbon neutral,” the campaign stated.
Carson told the Vanguard “we’ve had this sort of phenomenon in our country of alternative facts and things like that that I think have been harmful to our political debate and democracy.”
He said, he sees in the No on H ballot argument “example after example of false and misleading statements.
“It just felt like time to take a stand here,” he said.
Some have pointed out that there is always a good deal of competing statements in campaign, but as Carson noted there is a different standard for ballot arguments.
“It’s a different standard,” Carson said. “We’re not trying to take away anyone’s First Amendment right to say whatever they want out there in public. But when you have something like a voter information that is printed and distributed at taxpayer expense, the legislature passed a law, allowing these sorts of challenges in recognition that the taxpayers shouldn’t have to pay for false and misleading statements in those documents.”
The complaint references no less than five false and misleading statements (see the initial article for details).
“Here are these series of things that are just wrong,” Carson said. “We’re going to ask a judge to correct the record in those ballot arguments.”
Carson explained that “we’re staying away from things” that “fall under fair comment or opinion, and we really focus on things that are material and specific false and misleading statements.”
A key question that the judge will have to sort is out is the line between normal disagreements about public policy proposals and implications and statements that are in fact false and misleading.
Carson pointed out that the legislature has created this process to determine that you can draw the lines and noted “there are precedents about what you can and cannot do.
“We’ve looked carefully at what those legal precedents say and our attorney is quite convinced that we have a strong case to bring here,” he said.
For instance, he cites the GHG emissions issue.
The no argument claims, “Yet alarmingly, the Environmental Impact Report states DiSC is projected to produce 54 million pounds of new greenhouse gas emissions annually – largely from vehicle emissions. DiSC alone will increase the City’s carbon footprint by almost 5%, completely derailing the City’s ability to meet its carbon-neutral goal by 2040.”
The complaint, however, points out that the Development Agreement requires that “DiSC 2022 will achieve carbon neutrality by 2040. To achieve this goal each individual development must, prior to the issuance of building permits, demonstrate consistency with the City’s Climate Action and Adaptation Plan by demonstrating a fair-share reduction of GHG emissions.”
The complaint argues, “Given that the DiSC 2022 developments may not progress unless project applicants can show they are reducing greenhouse gas emissions in an amount equal to production, this statement is at best misleading and at worst false, and therefore must be deleted.”
As Dan Carson notes, “here we have a project that is legally required to be carbon neutral by 2040. The requirements for that are the mitigation monitoring plans for the EIR—they’re in the development agreements and they are in the baseline project features.”
He said, “So not only are they legally enforceable, but that particular requirement cannot, could not be changed, if Measure H were approved, without another vote of the public.”
He added, “More than that, there are a number of very specific actions that are hardwired into the project that deliver on that promise.”
For instance, the project is required to have large scale solar generation on site. He pointed out that whatever they don’t generate on site, “they have to buy ultra green power from Valley Clean Energy.”
Carson argues, “Very specific, credible, legally enforceable requirements, and they tell the voters that there is no mitigation of the emissions. It’s untrue.”
The question for a judge still will be to what extent is this allowable political rhetoric, and to what extent are the arguments false and misleading.