S.J. could pay $1M ballot measure recount

Errors admittedly made by Santa Clara County Registrar of Voters led to recount of signatures in controversial labor-backed initiative to shift city’s mayoral race

In a decision that could cost San Jose an estimated $1 million, a judge has ordered the city to pay for the recount of nearly 100,000 signatures collected for a controversial labor-backed ballot measure aimed at shifting the city’s mayoral race to presidential election years, when voter turnout is higher.

The order, issued Friday by Santa Clara County Superior Court

Judge Peter Kirwan and made public Monday, stems from a lawsuit filed by Santa Clara County Registrar of Voters Shannon Bushey against San Jose City Clerk Toni Taber and three proponents of the ballot measure over dozens of errors Bushey acknowledged she herself made.

“Simply put, the policy of preserving the right of initiative leads to this court’s conclusion that Registrar has the right and duty to correct her errors and issue a new, corrected certification upon discovering those errors,” the judge wrote in his declaration.

If county election officials verify at least 65,573 valid signatures by June 23, the measure could still get on November’s ballot, according to Kirwan.

The decision was a victory for San Jose labor leaders who contended Taber misplaced nearly 3,000 signatures — or multiple boxes full of papers — after they turned over their petitions on Feb. 12.

“Toni Taber has some explaining to do,” Ben Field, executive director of the South Bay Labor Council, said in a news release. “If the measure does not get on the ballot because of those missing signatures, it’s an affront to democracy.”

In court documents filed last week, Taber accused Bushey of politically pressuring her to disregard the state standard in order to give the ballot measure a better chance to qualify. The city clerk said she received three or four calls from Bushey during the course of

the random-sampling process, offering to conduct a full count rather than the sampling.

“Are you sure you do not want a full count? My boss is here,” Taber alleged Bushey told her during the last call.

“I cannot recall any other instance in which Ms. Bushey called me regarding the status of a count before the ROV had issued its certification,” Taber wrote in her declaration. “It was my impression

that Ms. Bushey was under pressure from her superiors to conduct a review of all of the signatures.”

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

The concept was narrowly rejected by the San Jose City Council a year ago, but top labor leaders pumped more than $420,000 into their campaign and in February turned in more than 96,000 signatures to qualify the measure for the ballot.

Earlier this year, Bushey conducted a random sampling of 3% of the submitted signatures, as required under the state election law, but she was unable to verify that at least 95% of the signatures were valid — the required threshold to qualify the measure for a full signature count.

After reviewing the signatures with proponents of the measure just a month later, however, Bushey said her team made some significant errors and missed at least 87 valid signatures that would have pushed the initiative past the threshold and required the city to conduct a full count.

The erroneously rejected signatures resulted from a wide variety of missteps made by the county elections department, including failing to identify the correct voter record, incorrectly determining that some people registered to vote after they signed the petition, and incorrectly identifying a voter as registered at a different address than listed on the petition, according to a court document filed by the county’s election division coordinator.

In an unprecedented move, Bushey then filed a suit against Taber and three proponents of the ballot measure to get a judge to reverse the decision she made about two months ago.

The full signature count is expected to cost San Jose $1 million — a hefty price tag when the city is considering more than a hundred million dollars in budget cuts over the next year forced by the coronavirus pandemic.

Katie Zoglin, senior deputy city attorney for San Jose, argued that Santa Clara County should be required to pay for the recount that its errors had created.

“Under any circumstances, a million dollars is never a small amount. Under these circumstances, it’s substantial,” Zoglin said during oral arguments.

But the judge inevitably ruled that state law obligates the city to pay for expenses associated with the verification process of ballot initiatives.

“I’m very sensitive to the economic impact of this, particularly in light of the current situation,” Kirwan said during the oral arguments. “But my job is to apply the law to the facts by all account, and the facts, in this case, are unique.”