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Court of Appeal:
‘Ballot Label’ Drafted by A.G.’s Office Won’t Mislead Voters
Opinion Rejects Judge’s View That Sum-Up of Proposition 5 Is Deficient by Not Revealing That Present Law Requires Two-Thirds Voter Approval of Bond Measures; Under Proposal, 55 Percent Would Be Needed in Some Instances
By a MetNews Staff Writer
The Third District Court of Appeal has held that a “ballot label” drafted by the Office of Attorney General adequately informs voters of the nature of Proposition 5—which would allow passage of certain local bond measures by a 55 percent vote—rejecting a judge’s conclusion that voters would be misled because there is no mention that the measure would lower the requirement from the 66.6 percent super-majority that is generally mandated.
A “ballot label,” provided for by Elections Code §9051(b)(1), is a “condensed ballot title and summary for a statewide initiative measure” which “shall not contain more than 75 words and shall be a condensed version of the ballot title and summary including the financial impact summary.” The label devised by the Attorney General’s Office is 65 words by the trial court’s count (regarding “low- and middle-income” as one word) and 68 words according to the Court of Appeal’s reckoning—in either event, short enough to accommodate additional wording if judicially required.
The disputed ballot label says:
“ALLOWS LOCAL BONDS FOR AFFORDABLE HOUSING AND PUBLIC INFRASTRUCTURE WITH 55% VOTER APPROVAL. LEGISLATIVE CONSTITUTIONAL AMENDMENT. Allows approval of local infrastructure and housing bonds for low- and middle-income Californians with 55% vote. Accountability requirements. Fiscal Impact: Increased local borrowing to fund affordable housing, supportive housing, and public infrastructure. The amount would depend on decisions by local governments and voters. Borrowing would be repaid with higher property taxes.”
Lawyers for Jon Coupal, president of the Howard Jarvis Taxpayers Association (“HJTA”), secured a writ of mandate from the Sacramento Superior Court last Friday directing that wording be added to reflect that the proposed constitutional change, proposed by the Legislature, would lower the required number of votes on affected bond measures. Coupal and the association argued that without such an explanation, some voters in the Nov. 5 election would assume that passage would mean that more than a simple majority would now be needed for the bond measures to win approval, thus heightening the requirement.
Superior Court’s Decision
Superior Court Judge Shelleyanne W.L. Chang ruled:
“Based on the specific facts before it, the Court finds that the ballot label falls short of informing the public of the ‘chief purpose’ of Proposition 5, that is, a reduction from a two- thirds to a 55% required voter approval for new local bonds for the specified purposes. Consequently, this label would mislead the voters absent use of additional clarifying language, which additional language is available within the 75-word limit.”
The Office of Attorney General argued that case law establishes that voters are presumed to know what the current law is. Chang responded:
“[T]he presumption allowed in cases of statutory interpretation does not apply such that the Attorney General should eschew descriptions of existing law when informing the electorate of the ‘chief purpose and point’ of an initiative. Rather, the Attorney General in his drafting of the ballot label, must ‘avoid misleading the public,’ even if doing so requires a short restatement of existing law.
“This is not a determination that the Attorney General could describe the chief purpose of the measure ‘better,’ as the Attorney General suggests. Rather the Court finds that, as written, the label fails to inform the electorate of the character and purpose of the measure.”
Expedited Review
Attorney General Rob Bonta sought a writ in the Court of Appeal, and the writ proceeding was handled on a highly expedited basis. Although a declaration from the assistant state printer said that a final judicial decision was needed by 5 p.m. on Aug. 12, the opinion was issued one day after that, with Acting Presiding Justice Ronald B. Robie observing in an unpublished portion that the slight delay “will not substantially interfere with the timely printing and distribution of ballot materials.”
Addressing the merits in the published portion, he said:
“Not only is the language in the ballot label factually accurate, but we fail to perceive how a voter would not correctly construe the purpose or the proposition even if only reading the ballot label in isolation….What Proposition 5 would itself effectuate is couched in concise language that is easy to understand.
“The fact that real parties challenged the ballot label in isolation from the title and summary points to an even more fundamental weakness in their argument. In considering a challenge to the title and summary, this court has emphasized that they should be read together as a whole and, in so doing, found a title was not likely to create confusion because of language found in the summary.”
Robie added:
“While the ballot label is undoubtedly prominent in the voter information materials, the fact the title and summary here contain the information that real parties want included in the label substantially diminishes the force of their argument that there is a danger voters will be misled. Real parties presented no evidence establishing voters will be misled by the ballot materials at issue or that these materials are inconsistent with the Elections Code, much less evidence necessary to support a clear and convincing evidence finding by the trial court.”
Robie specified that the opinion became final upon filing.
HJTA Comments
Laura Dougherty, the HJTA’s director of legal affairs, commented yesterday:
“A legal ‘condensed version’ of the title and summary should not omit vital information. Previous courts have so held and the voters should have been able to rely on that principle of law. HJTA is very disappointed in the Court of Appeal’s reversal. It remains deeply concerning that the Attorney General is so unwilling to inform voters through the ballot label—despite adequate words being available to print—that Proposition 5 would be a reduction from a 2/3 vote margin Californians have had constitutionally in place for their own financial protection since 1879.”
David Kline, spokesman for the California Taxpayers Association, said:
“The trial court had it right, supporting Californians’ right to receive an unbiased, informative description of the measure they are voting upon. The Court of Appeal essentially ruled that voters don’t deserve full disclosure, even when there is plenty of time and space available to provide a more thorough and accurate title.”
Association’s Standing
The challenge to the ballot label was mounted both by Coupal and HJTA. Chang recognized only Coupal as a party with standing, explaining:
“Elections Code section 13314 only permits an “elector” to seek a writ of mandate. An association is not an ‘elector’ within the meaning of section 13314. However, the Court finds this procedural deficiency is not determinative of the merits of the petition, given that Jon Coupal, an individual elector, is also a petitioner in this matter.”
Robie, in a footnote, alluded to Chang’s determination as to standing but treated HJTA as a real party, impliedly disagreeing with the trial judge.
Dougherty remarked:
“Should it come up in the future and need to be argued, HJTA would argue that it has associational standing on behalf of its members because they could pursue the action individually and because HJTA’s mission is germane to the purpose of voters being properly informed on government finance ballot measures.”
The case is Bonta v. Superior Court (Coupal), 2024 S.O.S. 2780.
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