By David M. Greenwald
Davis, CA – Most people I talked to this week around Davis seem to think the actual Measure H race is about a toss-up. Across the state, the ballot returns have been woefully bad—maybe even historically bad. By that measure, Davis has been a bit more robust.
The consensus seems to be low turnout will hurt Measure H but the breakdown on the return numbers so far isn’t wholly bad. One factor that has not been discussed nearly enough is that the measure lost narrowly in 2020 and there was no ground game because of the pandemic. This time, the campaign claims to have hit 30,000 households on the ground and 30,000 via the phone. That could be the x-factor.
The news this week on the awarding of $42K from Dan Carson to the No on H ballot signers was kind of a coup de grace for that little episode. While the internal campaign has put a brave face on it, others I spoke to on Friday were pointed and in some cases livid.
The prevailing sentiment is that if Measure H goes down, “it’s on Dan Carson.” Some of the messages were profanity-laced and cannot be repeated here.
“This was completely winnable,” one person told me. “Any random Davis voter should have been asked to front it, not a sitting elected official.”
I completely agree on that. As I wrote in Opening Thoughts yesterday, Carson and the campaign were a bit tone-deaf as to how the community would respond to litigating the ballot statements.
The point Dan Carson has made, and I think correctly, is if you actually read what Judge Maguire wrote, it was not overwhelmingly against Carson and the Yes on H campaign. As I said yesterday, the judge characterized it quantitatively as three for the respondents, one for the petitioner and one split, I see it more as 2-1-2 where the petitioner actually prevailed on two points, the respondents one, and on two points the judge kind of agreed with petitioner but the tie went to the respondents.
The political optics of this whole episode are an unmitigated disaster for the Yes on H campaign.
While I think Carson and the Yes side had a considerably stronger case than many have acknowledged, the political damage done seems to outweigh any benefit. Had it been a regular citizen filing the complaint, that probably would have produced much less in the way of backlash.
With all that said, when I saw the judgment of $42K in attorney fees and the press release from the No on H side, I was prepared to really unload on Carson, but after reading the decision by Judge Maguire I find myself completely torn on this issue.
I still think it’s a political disaster, but the ruling quite frankly might be wrong.
The judge acknowledges that he treated the same standard for determining “successful party” in which the courts have used the “any significant issue” standard as being equivalent for both the Real Parties and the petitioner, despite the fact there is no case law that clearly states this.
And when you look at his qualitative tally it becomes murky. By his count, “The quantitative tally is one victory for Petitioner, three for Real Parties in Interest, and one split decision.”
But is it? If you read through, it looks like the petitioner prevailed on two issues that were raised. Moreover, two issues were not clear victories for the Real Parties. On the issue of no binding commitments, Maguire writes, “While the truth of this statement is debatable, the Court let it stand for lack of ‘clear and convincing’ evidence of its falsity.”
On the issue of unmitigated greenhouse gas emissions, Maguire writes, “The court found this heading ambiguous, and therefore let it stand.”
Given the standard that weighs so heavily for the Real Parties, Maguire correctly applied the concept of ties goes to the respondents, but then claimed clear victories on two such cases.
In short, the actual results are lot more murky than the headlines. Still, the headline is really what matters and that reads, Councilmember Carson will have to pay $42K, the Real Parties rightly are claiming victory and the political costs could be astronomical. There is really no defending the political fumble here.
That point is probably best underscored by the May letter from six former mayors that condemned Councilmember Carson’s court action.
They write, “Councilman Carson’s lawsuit did not produce any meaningful changes to the citizen’s ballot arguments. A judge changed one word and converted a troy measurement to a metric measurement. That’s it. The apparent purpose of the developer-funded lawsuit was to squelch the speech of the opponents to Measure H. Mr. Carson and his deep-pocketed backers probably assumed that the citizens would not be able to afford to litigate the ballot argument.”
They add later in a devastating line: “The problem with Carson’s conduct in the Measure H campaign is that he has blurred the line between his role as an elected representative of the people of Davis and his advocacy for a development project. This conflict of interest was on full display at the April 5 City Council meeting, when he took up a Measure H matter that was not on the agenda and gave a lengthy political speech. Even Mayor Gloria Partida admonished Carson this was improper.”
The good news for the Yes on H side is that the focus on Dan Carson as the boogeyman took a lot of the focus off the traffic issues.
While I think the Yes on H side has a better answer on traffic than they did two years ago, the cost was to displace one thorny issue with an issue that may ultimately be worse.
Despite all of this, I still think Measure H has a fighting chance come Tuesday. It’s a smaller project with a smaller impact than 2020, and 2020 was a very close race.
The next question will be to see if any opposition to Dan Carson emerges for November when he is up for reelection, for the first time in his own West Davis district.