County sues San Jose over ballot initiative

Measure called for moving mayoral elections and limiting some campaign contributions

Santa Clara County’s top elections official is suing San Jose’s city clerk, demanding a recount of nearly 100,000 signatures for a controversial labor-backed ballot measure to shift the city’s mayoral race to presidential election years when voter turnout is higher.

The lawsuit, filed by the Santa Clara County Registrar of Voters in the county’s Superior Court, comes after the registrar admitted she made dozens of errors when counting the signatures last month and declaring that the measure did not receive the required number to be placed on the November ballot, according to the court petition.

“The (registrar of voters) determined during this process that a number of the signatures that it had rejected as invalid during the random check were, in fact, valid,” said the petition filed April 13 against San Jose City Clerk Toni Taber and three proponents of the initiative.

The unusual reversal request from the county could come with an especially hefty price tag during the current coronavirus pandemic of about $1 million for the city.

“Given the fact that we’re all having to cut our budgets, it’s a big number,” City Attorney Richard Doyle said. “It’s their mistake and I think the county should have to cover their mistake.”

After the San Jose City Council narrowly shot down the proposal to move mayoral elections a year ago, top labor leaders in February turned in more than 96,000 signatures to qualify the measure for the ballot, after pumping more than $420,000 into the petition drive last year.

The measure — dubbed the Fair Elections Initiative — called for aligning mayoral election with presidential years to boost voter turnout, particularly among people of color, and placing a cap on certain campaign contributions, including those from any person or entity that has received city contracts of at least $250,000.

Under the state elections law, the county registrar must verify at least 95% of signatures from a

random sampling of at least 3% of those submitted — or about 2,900 signatures in this case — in order for the city to conduct a full count of all the signatures.

In her decision released in March, county Registrar of Voters Shannon Bushey declared that the measure did not meet the threshold for a full signature count.

The measure’s backers needed to collect at least 65,573 valid signatures but Bushey said the random sample indicated they fell short by 1,183 signatures. The state elections law suggests her decision would be the end of the matter.

Yet, just a month later, after reviewing the signatures with the proponents of the measure, Bushey said she made some significant errors and missed at least 87 valid signatures that would push it past the threshold and require the city to conduct a full count.

In the petition, Bushey admitted her mistakes and asked the judge for an immediate order that the city recount the full list of signatures, as would have been required if the registrar had initially confirmed that 95% of the signatures were valid.

“The (registrar of voters) determined during this process that a number of the signatures that it had rejected as invalid during the random check were, in fact, valid,” the petition said. “The (registrar of voters) is further informed and believes that it is legally mandated under Elections Code section 9115 to review all 94,202 initiative signatures to confirm their validity and, if appropriate, certify the initiative.”

Bushey and Santa Clara County Counsel James Williams have declined to comment. But Evelyn Mendez, the registrar’s public and legislative affairs manager, said in a statement that the registrar’s “core mission is to safeguard the integrity of the electoral process, and for that reason, the ROV is seeking to ensure the validity of the signature verification process.”

To make the circumstances even murkier, labor leaders claim Taber misplaced more than 2,000 signatures — or multiple boxes full of papers — after they turned over their petitions on Feb 12. According to a receipt provided to them by the clerk, they submitted more than 96,000 signatures but the registrar only received about 94,000.

Ben Field, executive director of the South Bay Labor Council, one of the organization’s behind the measure, called the loss of the signatures “an affront to democracy.”

“All of the voters in San Jose have an interest in the integrity of our elections and the clerk has lost that integrity by losing nearly 3,000 signatures,” Fields said. “That could be the difference between the measure qualifying for the ballot and not qualifying.”

Doyle said he has not seen “any evidence” of someone losing the signatures and instead believes

it may have been miscounted initially.

The errors made by the county have caught the eye of the city’s largest chamber of commerce, the Silicon Valley Organization, which filed a petition to join the suit the same day that the county asked the judge to order a recount.

The SVO, which typically is at odds with labor interests, was against the proposed measure from the start, along with Mayor Sam Liccardo. They both took issue with the measure because it sought to weed out donations from particular special interests but exempted labor unions.

Matthew Alvarez, an attorney representing the SVO, said he has “never seen errors and mismanagement in an election process like this.”

Incorrectly counting 87 of the 2,900 signatures as invalid when Bushey now says they are valid, would be an error rate of about 3%.

“With that type of error rate, it gives me no confidence in any of the results that the registrar has ever

put out,” Alvarez said.

In a supplemental court document, the county’s election division coordinator laid out a long list of the errors made by their own department, including failing to identify the correct voter record in their internal election system, incorrectly determining that some people registered to vote after they signed the petition, and erroneously identifying a voter as registered at a different address than the address listed on the petition.

The county elections department determined that some of the signatures were, in fact, valid with the help of the measure’s proponents who gave county officials “additional information such as specific addresses and locations where the representatives circulated the petition pages,” court documents state.

“Upon information and belief, the authorized representatives of proponents knew where they circulated the petition because they went door to door in some cases and recalled their ‘territories’ while reviewing petition pages with VRD,” the document said. “For this reason, they had the advantage of making more well-informed, educated guesses when the addresses were illegible.”

Alvarez said that’s not how the process is supposed to work.

“The proponents are not allowed to bring in extringent evidence,” he said. “The fact that the (registrar of voters) allowed them to do that is in and of itself extraordinary. Not to mention, they’re asking the public to believe them without any oversight.”

The judge will decide Wednesday whether the Silicon Valley Organization can be a party in the suit and will hold a hearing regarding the merits of the county’s petition on May 8.

“There’s no way that all the community advocates who’ve been behind this measure and put such a huge amount of energy time and money in to can let it lie,” Fields said. “Getting that full count is another chapter in what’s going to be a long story.”