Education Matters: Registrar of Voters sued over Del Mar Union’s Measure MM

UPDATED: May 2, 2019 at 4:56 PM PDT

Michael Vu, Registrar of Voters for San Diego County, is being sued, along with County Counsel Thomas Montgomery, over issues related to the age last November of Del Mar Union School District’s Measure MM General Obligation bond.

The lawsuit, brought April 24 by Del Mar residents Michael Robertson and Keith Hammer (known in the court document as “contestants”), cites nine Causes of Action that provide sufficient evidence of “violations of California law and due process in conducting fair and impartial elections,” contestants claim.

The suit, called the “Honest Ballots Complaint,” asks the court to set aside, or invalidate, Measure MM.

“When public entities do not follow and enforce the law, the necessity and financial burden of private enforcement is required to change that behavior,” the document reads.

Measure MM, which ed in 2018 with 61 percent of voter , asked voters within DMUSD’s boundaries to approve a $186 million General Obligation bond to fund facility needs. The threshold for approval of a Proposition 39 bond special election is 55 percent.

The school district filed the resolution and ballot statement language, approved by the DMUSD school board on Aug. 6, with the county Registrar of Voters on Aug. 8, 2018. The election was held Nov. 6, 2018 and certified one month later.

Causes of Action

The first Cause of Action states that Vu truncated the 10-day mandatory public examination period by three days, thus “abridging the right of the electorate to prepare an argument against Measure MM. As a result, no argument against Measure MM was filed.”

The second Cause of Action alleges that MM “contains intentionally vague, non-specific, generalized types and categories of projects which Defendant Montgomery did not analyze.”

Of the 11 SD County school district bond measures before voters last November, “Defendant Montgomery prepared identical analyses for each measure,” the suit states.

“Each identical analysis contained four variations in language – one for the name of the district and three for the amount of the bond issue.”

The lawsuit asks the court to note the “impartial analyses” for all 11 school district bond measures: Bonsall’s EE, Borrego Springs’ GG, Carlsbad’s HH, Chula Vista’s VV, Mountain Empire’s JJ, SD Unified’s YY, Santee’s S, South Bay’s NN, Sweetwater’s DD, Vista’s LL, and Del Mar’s MM.

“Defendant Montgomery’s actions represent gross malfeasance with respect to his statutory duty,” by failing to provide proper analysis, according to the complaint.

The third Cause of Action states that Proposition 39 requires “a list of specific school facilities projects to be funded” and alleges that Measure MM “does not contain a single specific school facilities project.”

It simply references a facilities master plan which “is a regularly changing document” rather than a specific lists of projects “in a fixed and immutable form.”

The fourth Cause of Action also takes issue with the MM project list provided to voters, stating that the list is “intentionally vague,” with the words “‘including but not limited’ sprinkled liberally” throughout the measure.

Contestants claim that voters were denied the right to know what they were voting for, with this ballot statement: “Approval of this measure does not guarantee that the specific projects listed by the district will be funded by the sale of the bonds.”

“Measure MM contains many more projects than the $186,000,000 will be able to fund, overselling the promises and under-delivering the results,” the document reads. “As written, Measure MM is a blank check that can be filled in at any time with whatever the local governing body takes a fancy to.”

Objections were also raised over whether any of the projects were actually needed, because of this statement in the expanded MM language: “The listed projects will be completed as needed.” This violates the explicit purposes of Proposition 39 by suggesting that there is no current need, plaintiffs contend.

Finally, because Prop. 39 does not authorize expenditures “for all manner of maintenance and repair of facilities or systems,” a GO bond is not “a remedy for the failure of the school district to maintain the facilities under its trust,” the complaint states.

Deceptive language

The fifth Cause of Action states that election laws were violated when the ballot did not specifically have the phrasing, “Shall the measure (stating the nature thereof) be adopted?”

The sixth Cause of Action cites numerous examples of language in the ballot that are “likely to create prejudice in favor of Measure MM,” thus violating Elections Code 13119(c) which requires that ballot statements “shall be a true and impartial synopsis of the purpose of the proposed measure.”

One example is the title of the measure (“To improve Del Mar neighborhood elementary schools”), which contestants say is not neutral and is designed to influence voters to favor the measure.

Other examples are the words “deteriorated,” “to improve safety and security,” and “to science.”

Further, contestants say that including the claim that bond funds will be monitored by an independent citizens’ oversight committee gives a false impression of true oversight, when strong evidence from The Little Hoover Commission “found that the local governing bodies exert control over the oversight committee to such an extent that true oversight rarely occurs.”

Also, contestants claim that Measure MM’s statement that all money will be for Del Mar schools is untrue, is intended “to give the voter the false assurance that all the proceeds of the bonds will be expended locally,” and “therefore deceives and misleads the voter to draw a false conclusion.”

The district “knows full well” that proceeds will be spent to pay for a variety of other “so-called soft costs to non-local service providers,” the complaint reads.

It states that soft costs, according to the school bonds industry, “are expected to amount to approximately one-third of the principal amount of the bonds issued.”

The seventh Cause of Action charges Vu with failing to properly follow Education Code 15272 when he printed Measure MM’s ballot with the words “with independent citizens’ oversight” rather than the disclosure that “the board will appoint a citizens’ oversight committee.”

Contestants claim this distinction is important, with “an objectively different meaning” that is “likely to create prejudice for Measure MM.”

The eighth Cause of Action charges that Measure MM used “purposely vague language” to deceive voters when it stated that the maximum interest rate would be “at legal rates.”

Education Code 15122, the complaint states, requires that “the maximum rate of interest … shall be printed on the ballot.” To include the words “at legal rates” is an attempt to satisfy the mandate, contestants say, but hides the true maximum interest rate for GO bonds as provided by Government Code 53531, which is at 12 percent.

The ninth Cause of Action charges that Vu violated the mandate that the ballot statement not exceed 75 words, when Measure MM was 77 words.

Sleep on your rights

I first wrote about this issue in two columns in January and interviewed San Diego attorney Robert Ottilie who said the complainants have no case because it’s not the registrar’s job to ensure that governing bodies follow the law. That obligation, he said, falls to the governing bodies – in this case, the school boards.

A 10-day period of time is set aside for review and objections before ballots are printed, Ottilie said – noting that complainants’ letters of objection, which were sent before the 10-day review period and after the election concluded, are not valid.

Ottilie cited the Laches defense which states that one cannot “sleep on your rights” and wait until after the statutory period of time to file complaints.

“If you sit on your hands and you don’t challenge during the statutory period that’s been created just for your benefit by the state legislature … it’s thrown out of court,” he said.

Robertson countered that there are numerous examples of post-election challenges, referencing a list of such challenges compiled by Claremont McKenna College’s Rose Institute.

Vu, in my January column, said the role of his office is not to review ballot language submitted to him by other governing bodies, and that his job is to act as a facilitator contracted to conduct elections.

He said the complainants should work with school districts at their public meetings before ballot language is submitted.

“The notion that whatever the school board votes on gets printed on the ballot ignores what the election law says and requires,” Robertson said.

“Let’s replace the Registrar Office with a Kinko’s if all they’re going to do is print whatever is sent to them,” he added.

A statement on the Registrar of Voters website reads, “The San Diego County Registrar of Voters is NOT an enforcement agency and is therefore unable to investigate any violations.”

Referring to Elections Code 9190, Vu said the courts would decide if there’s clear and convincing evidence of non-compliance with the law and would determine the legality of the matter.

Rigged system

Robertson said he’d like to see other lawsuits filed over similar violations by the other 10 county school bond measures from last year, “because it is a rigged system. The abuses for Del Mar are not unique.”

A Del Mar resident, Robertson said only a ed voter in the district can challenge an election.

The lawsuit alleges that Registrar Vu “printed and circulated non-conforming ballots for more than 28,373 electors, subjecting himself, his employees and his agents to criminal liability under Elections Code 18401. This is an offense against the elective franchise.”

The lawsuit also asks the court for an order “directing Defendant Vu and successors in office to reject any future resolution from a local governing body where the ballot statement does not strictly conform to the disclosure and fairness requirements.”

The plaintiffs are asking that Measure MM be set aside, stating that no one can say with certainty what the vote of the electorate would have been if the voting public had been presented with fair, impartial, accurate and legally conforming language.

They also maintain that any of the nine Causes of Action are sufficient to find that the

Measure MM election “was not conducted in a fair and impartial manner.”

“I want an honest election, and that’s not what happened with the Del Mar school bond,” Robertson said.

As of press time, neither Vu nor Montgomery had offered a comment. Nor had any spokespersons from the county offices.

Follow the law

The ramifications for a lawsuit of this magnitude are enormous.

Yes, some of the complaints are trivial (77 words instead of 75), and some are puzzling and subject to difficult interpretation.

One of the more confusing charges is the claim that no specific projects were listed, even though the ballot, for example, does state: “to construct and equip a new elementary school.”

“Where? How big? When?” Robertson said. “There’s no specificity. The bonds are supposed to list precisely what is going to be built for the monies borrowed.

“There’s broad references that mean nothing, like creating a ‘STEAM+ classroom.’ Huh? What’s that?”

“I defy anyone to tell me exactly what projects the debt will be used to build, which is exactly the point,” he continued. “It’s a pot of money they can use for whatever they want. That does not meet the requirement for a Proposition 39 bond requiring only 55 percent approval.”

There’s no doubt that school districts want their bonds to . Bond consultants and attorneys are hired at considerable cost to craft surveys and write ballot language that attempt to influence the voter to the approval side.

After all, the phrasing “to improve Del Mar neighborhoods schools” in the title certainly makes it difficult to oppose such a purpose. Who wants no improvement in their neighborhood schools?

Bias is clear in so many instances, and school districts and their consultants push the limits – or exceed them, as Robertson claims – to reach their goal.

But someone somewhere has to make sure it’s done properly.

If school districts and their bond counsels are permitted to ignore education and elections codes, and the registrar only prints what is submitted, then the significant burden to prove violations of the law falls to motivated constituents with in-depth knowledge of elections and education codes – or deep pockets to hire their own attorneys.

That seems an unreasonable duty to ask of any individual citizen. Easier would be for governmental agencies to follow the law.

Opinion columnist and Sr. Education Writer Marsha Sutton can be reached at [email protected]

For earlier columns on the question of ballot language legality, see:

Part 1 — https://www.delmartimes.net/our-columns/sd-cm-nc-education-matters-20190116-story.html

Part 2 — https://www.delmartimes.net/our-columns/sd-cm-nc-education-matters-20190124-story.html

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Education Matters: Registrar of Voters sued over Del Mar Union’s Measure MM

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