Clerk rejects petitions for arena vote

01/24/2014 10:00 AM

02/12/2014 9:03 AM

The campaign to force a public vote on Sacramento’s downtown arena plan was dealt a considerable blow Friday, when the city’s top elections official rejected the measure for “major” legal flaws and ruled it should not appear on the June ballot.

City Clerk Shirley Concolino ruled that petitions circulated by Sacramento Taxpayers Opposed to Pork (STOP) and Voters for a Fair Arena Deal contained numerous violations of state and city elections code. Those deficiencies included the omission of key legal language on the petitions and differences in how nine different versions of the petitions were worded.

“I’ve never seen a petition with as many flaws as this one,” Concolino said.

After expressing confidence for weeks that their petitions were valid, representatives and attorneys for both organizations did not respond to Concolino’s ruling for seven hours. In a news release late Friday, the group said it was “disappointed but not tremendously surprised” by the decision, given that city officials are the key proponents of the arena plan. STOP said it was evaluating its legal options.

“This is a very dark day for democracy in Sacramento,” the statement read. “The city clerk is trying to use a small number of minor and insignificant printing errors in the initiative petition to disenfranchise Sacramento voters.”

The groups had collected 22,938 signatures from city voters, seeking to place a measure on the June 3 ballot which, if passed, would require voter approval of public subsidies proposed for professional sports facilities.

If that measure passed, it would likely result in a second vote in November on the city’s plan to contribute $258 million – most of it from revenue bonds backed by fees from parking spaces – to a planned $448 million arena at the Downtown Plaza.

Arena boosters applauded Concolino’s decision.

“If this was an NBA game, (the ballot measure groups) would have been ejected for the equivalent of flagrant fouls by this point,” said Joshua Wood, executive director of The4000, a political action committee aligned with Mayor Kevin Johnson that supports the arena plan. “For STOP, this has never (been) about a vote and democracy; it has always been about tricking voters and stalling the arena with a two-part vote designed to blow up the project.”

The mayor said in a statement that the clerk “takes very seriously her responsibility to protect the public” and that STOP “omitted key pieces of information (on the petitions) required by voters to make an informed decision.”

“As I’ve stated before, given the 4,000 jobs, the transformation of downtown and our ability to keep the Kings all at stake, I’ve had serious concerns about the integrity of the process and the underhanded attempt to subvert and trick voters with misrepresentations, hidden money and misleading petition language,” the mayor said.

Chris Rufer, an agri-business executive who donated $45,000 to the petition drive, said he was disgusted to hear that the petitions were disqualified “by a few language things.”

“It’s just insulting the intelligence of the Sacramento citizens,” said Rufer, who lives outside the city limits in Sacramento County but was one of the initiative’s biggest donors. “Obviously, the citizens that signed this petition knew what they were doing.”

City officials said they remain on track with the arena, which is scheduled to be completed in 2016.

Assistant City Manager John Dangberg said city staff plans to seek City Council approval April 1 of an environmental impact report and development agreement for the arena. City officials then plan to sell bonds to finance the project in May and begin demolition of Downtown Plaza soon after.

“We have not moved any of the major milestones, and it hasn’t been influenced by any of the issues around the petition drive,” Dangberg said. “We will stay on that schedule unless other factors external to the financing and development of the project dictate.”

Dangberg declined to say what external factors could change the schedule, or whether a June vote specifically would cause the city to back off of a May bond sale.

In rejecting the ballot measure, Concolino said the wording differences in some of the nine petition versions was minor, but that others contained “substantial” changes.

In a flaw that affected all of the signatures, Concolino said STOP failed to include an enacting clause on any of the petitions. That clause notifies signers of an initiative petition that the measure being proposed will be enacted into law if passed by the voters.

Concolino said signatures were gathered on petitions that omitted an entire paragraph from a notice of intent the measure’s supporters filed with the clerk when they began gathering signatures. Those petitions also included “entirely new language” that did not appear in the notice of intent, as well as statements ending in incomplete sentences.

The clerk said 6,719 signatures appeared on the petitions with those differences. Rejecting those signatures alone bumped STOP well below the number needed to qualify the measure for the ballot.

Another 105 signatures were gathered before STOP filed its notice of intent.

In another misstep, when proponents of the STOP measure published their notice of intent in the Sacramento Observer newspaper, they omitted their names and signatures, the clerk said.

A notice of intent informs local elections officials and the public that a group plans to collect signatures for a ballot measure. The law requires that it be submitted to the City Clerk and published in a general circulation newspaper. The copy submitted to the clerk by STOP contained the required names and signatures of the proponents, unlike the published version.

City Attorney James Sanchez said he “would be shocked” if Concolino’s decision was not challenged by the ballot measure groups, given that lawyers representing the campaign have sent correspondence to the attorney in recent weeks dismissing concerns raised by pro-arena groups on the petitions’ legality.

Sanchez said he thought “it could be a close decision,” but that he was confident the city clerk’s decision to strike the measure from the ballot would be upheld by a judge.

“At the end of the day, the clerk felt as though she had the integrity of the process at risk with the inconsistencies and the issues she raised,” Sanchez said. “I think those factors would sway a decision-maker,” such as a judge.

Jessica Levinson, an election-law expert at Loyola University in Los Angeles, said courts tend to interpret the petition requirements strictly.

“You have to dot your i’s and cross your t’s,” Levinson said. “Just because people signed (the petitions) doesn’t mean you don’t have to follow the provisions.”

She said courts have upheld decisions by city clerks to reject petitions over wording issues.

“There is absolutely case law that says, ‘This might sound picky, but we have these provisions for a reason,’ ” she said.

Fred Woocher, a Santa Monica lawyer who deals with initiative cases, said the law “lays out some very explicit requirements.” In one case, Woocher’s client had petitions rejected by a clerk because the notice of intent was published in the wrong newspaper. The court sided with the clerk.

Woocher added that he isn’t surprised that Sacramento’s clerk rejected the STOP petitions, simply because clerks have almost no discretion in these cases. “The clerk was on solid ground,” he said.

Still, other legal observers said the courts may interpret the discrepancies pointed out by Concolino to be insignificant.

“If the discrepancies are minor, they tend to be excused,” said Rick Hasen, an election-law expert at UC Irvine.

In one notable case, a judge threw out a 2005 redistricting initiative championed by then-Gov. Arnold Schwarzenegger because the language submitted to the state elections officials differed from the actual petitions. But the state Supreme Court overturned the decision, ruling that the differences were insignificant.

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