How Legislators Skirted the Law to Gain a Narrow Victory for Proposition 1A
On November 4, 2008 Californians voted 52.5 to 47.5% in favor of the “Safe, Reliable, High-Speed Passenger Train Bond Act”. In the next few paragraphs I expose how California’s elected officials voided important provisions of California and Federal Election Code and ignored key requirements of their own High-Speed Rail legislation in their successful effort the fool Californians into approving Proposition 1A.
Evading the Election Code
The “Safe, Reliable, High Speed Passenger Train Bond Act” or Proposition 1A was not initiated by the voters. Rather, it was initiated by the State Legislature with the passage of Senate Bill 3034 [Note 1], signed by the governor on August 26, 2008 just 70 days before the upcoming election. It is at this point that our elected officials begin overriding our election laws when they mandated by statute (provisions contained in SB 3034) a dozen exceptions to current election code law. The list follows:
Section 9051 paragraph c – Impartial ballot title and summary that shall not create prejudice, for or against the proposed measure; (c)
Sections 13282 & 9092 – Right of the public to challenge prejudicial ballot wording;(i)
Section 9054 – Requirements to assure a fair translation to other languages as required by the Federal Voting Rights Act of 1965;(h)
Section 13115 – The order in which initiatives show on the voter’s ballot;(b)
Section 13117 – The number associated with the initiative as shown on the ballot;(b)
Section 9040 – 131 day waiting period for legislative initiatives to appear on a ballot;(a)
Section 9061 – 120 days public notification prior to an initiative appearing on a ballot;(a)
Sections 13282 & 9092 –State Secretary duty to notify the public of initiative wording;(i)
Section 9043 – Constraints on arguments placed by legislators in favor of initiative;(a)
Section 9044 – Rights of voters to place arguments against an initiative.(a)
All exceptions to California’s Election Code are found in Chapter 20, part 2704.21, SEC. 11, paragraph (“letter”) of SB 3034. The letter to the right of each description above is the paragraph letter where the exception is written into the law.
[Note 2 – Sections referenced above are shown in their entirety at the end of this article]
By making Section 9051 paragraph c of the election code moot legislators were free to prejudice the voting public with the following ballot language:
“SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT
To provide Californians a safe, convenient, affordable, and reliable
alternative to driving and high gas prices; to provide good-paying jobs and
improve California’s economy while reducing air pollution, global warming
greenhouse gases, and our dependence on foreign oil, shall $9.95 billion in
bonds be issued to establish a clean, efficient high-speed train service linking
Southern California, the Sacramento/San Joaquin Valley, and the San
Francisco Bay Area, with at least 90 percent of bond funds spent for specific
projects, with federal and private matching funds required, and all bond
funds subject to independent audits?”
In fact, all 100 words of the ballot title and summary (the maximum number of words permitted by section 9051.(a)(1) of the election code) are designed to prejudice voters in favor of the measure. Anyone reading it can almost envision a committee of bureaucrats stuffing the statement with positive attributes while watching the word count. They eventually had to hyphenate “High-Speed” and “good-paying” or the word count would have been 102!! It is also worth noting that non-prejudicial descriptions of the other eleven propositions on the ballot averaged just 26 words [Note 3].
Moreover, by skirting Section 9092 of our state’s election code and reducing the time for the public to challenge the prejudicial ballot wording in court from 20 days to 8 days, your legislators made it next to impossible for any member of the public to exercise their right to contest in a court of law the grossly biased ballot wording
With other provisions of California’s Election Code AND the Federal Voting Rights Act of 1965 “notwithstanding” (translate as “ignored”) your elected officials were unconstrained in translating their prejudicial ballot wording for non-English reading California voters.
Other sections of the election code “notwithstanding”, your officials were free to position the “SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT” at the top of the ballot AND free to number it Proposition 1A as opposed to merely Proposition 1.
The selective voiding of other sections of the election code allowed this legislator-driven initiative to be put on the ballot with short notice to the public (70 days instead of the election code mandated 131 days) while ensuring that legislators, “or their assistants” (translate as “lobbyists”) were unconstrained in writing ballot arguments in favor of their initiative. No concessions were granted to those desiring to write arguments against the initiative.
The late date of SB 3034’s passage necessitated a Supplemental Official Voter Guide being mailed to every registered voter at additional taxpayer expense. Stamped on its cover were the words, “This guide contains information regarding one additional measure that has qualified for the November ballot”. The cover wording did not include the words, “notwithstanding numerous sections of your California Election Code”.
Many of these election code violations were made necessary by the late passage of SB-3034, only 70 days prior to the scheduled election. For this reason the taking of some latitude with the election code provisions might be understandable but for the fact that legislators had been holding SB 3034 in reserve since at least 2002 [Note 4]. In fact, it was intentional to pass SB-3034 at a late date, and in so doing, disarm opponents of high speed rail. This statement is further supported by the fact that our governor took a full 13 days to sign the bill after its passage by the legislature [Note 5].
As appalling as it was for legislators and governor to disenfranchise voters by voiding important provisions of the election code, they were not yet finished with their shenanigans.
Ignoring Key Requirements of Their Own Bill
Senate Bill 3034 adds section 185033 to the Public Utilities Code to read:
The authority (California High Speed Rail Authority) shall prepare, publish, and submit to the Legislature, not later than September 1, 2008, a revised business plan (emphasis added) that identifies all of the following: the type of service it anticipates it will develop, such as local, express, commuter, regional, or interregional; a description of the primary benefits the system will provide; a forecast of the anticipated patronage, operating costs, and capital costs for the system; an estimate and description of the total anticipated federal, state, local, and other funds the authority intends to access to fund the construction and operation of the system; and the proposed chronology for the construction of the eligible corridors of the statewide high-speed train system. The revised business plan shall also include a discussion of all reasonably foreseeable risks the project may encounter, including, but not limited to, risks associated with the project’s finances, patronage, construction, equipment, and technology, and other risks associated with the project’s development. The plan shall describe the authority’s strategies, processes, or other actions it intends to utilize to manage those risks.
The Business Plan required to be submitted by September 1 was not submitted until November 7, 2008; three days after passage of Proposition 1A. This late submittal further stymied the opponents of Proposition 1A. After all, how do you argue against something that does not even exist on paper. Interestingly, the Reason Foundation , a tax-exempt research and education organization as defined under IRS code 501(c)(3) and supported by voluntary contributions from individuals, foundations and corporations, did publish its Due Diligence Report concerning the California High Speed Rail proposal on September 1, 2008 [Note 6].
The Reason Foundation’s scathing 196 page report of the proposed high speed rail project supported by 530 footnotes went largely unread by voters and was simply “out-worded” on November 4 by the legislature’s exceptionally biased 100 word description of their proposed high-speed rail project. It is also noteworthy that the cover letter accompanying the issuance of the Rail Authority’s Business Plan on November 7 was signed by Authority Board Member Judge Kopp and was undated [Note 7], [Note 8]. Must even our former judges deceive at every opportunity?
Finally, a key requirement of SB 3034 contained in Section 2704.04 (b)(3) states:
Upon a finding by the authority that expenditure of bond proceeds for capital costs in corridors other than the corridor described in paragraph (2) [San Francisco to Los Angles to Anaheim or “Phase 1” of the high speed rail project]would advance the construction of the system, would be consistent with the criteria described in subdivision (f) of Section 2704.08, and would not have an adverse impact on the construction of Phase 1 of the high-speed train project, the authority may request funding for capital costs, and the Legislature may appropriate funds described in paragraph (1) in the annual Budget Act, to be expended for any of the following high-speed train corridors:
(A) Sacramento to Stockton to Fresno.
(B) San Francisco Transbay Terminal to San Jose to Fresno.
(C) Oakland to San Jose.
(D) Fresno to Bakersfield to Palmdale to Los Angeles Union Station.
(E) Los Angeles Union Station to Riverside to San Diego.
(F) Los Angeles Union Station to Anaheim to Irvine.
(G) Merced to Stockton to Oakland and San Francisco via the Altamont
In other words, even though the biased ballot wording speaks of “linking Southern California, the Sacramento/San Joaquin Valley, and the San Francisco Bay Area”, which seem to imply connecting the system to Sacramento and all of Southern California (including San Diego), SB 3034 expressly prohibits the use of bond money to connect high-speed rail segments to Sacramento and San Diego if doing so would “have an adverse impact on the construction of Phase 1” (the San Francisco to Los Angles to Anaheim portion of the statewide system).
Today we know there is a woeful shortage of funds to complete even Phase 1 of this dreadfully ill-conceived project and so there will certainly be no funds to connect any high-speed rail system with Sacramento or San Diego. One wonders how many of the nearly 10 million Californians living in or near the counties of San Diego, Riverside, Sacramento, San Joaquin, and Stanislaus and who represent one-quarter of the state’s population voted for a high-speed rail system that was never really intended to serve their transportation needs.
The phrase “We need to take our country back” is often used in today’s political rhetoric. To be truthful, this blogger has never liked this phrase because I never knew from whom we were to take back our country. Now I know. We the people need to take back our country from our elected officials who disenfranchise, deceive, and lie to us in order to advance the proposals of those who donate to their political campaigns. I only wish I knew how this could be done.
Statements of fact made in this article are supported by footnotes and links shown below.
Note 1: Senate Bill 3034
Note 2: Pertinent Sections of California Election Code
Section 9051 paragraph c
In providing the ballot title and summary, the Attorney General shall give a true and impartial statement of the purpose of the measure in such language that the ballot title and summary shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.
9092. Not less than 20 days before he or she submits the copy for the ballot pamphlet to the State Printer, the Secretary of State shall make the copy available for public examination. Any elector may seek a writ of mandate requiring any copy to be amended or deleted from the ballot pamphlet. A peremptory writ of mandate shall issue only upon clear and convincing proof that the copy in question is false, misleading, or inconsistent with the requirements of this code or Chapter 8 (commencing with Section 88000) of Title 9 of the Government Code, and that issuance of the writ will not substantially interfere with the printing and distribution of the ballot pamphlet as required by law. Venue for a proceeding under this section shall be exclusively in Sacramento County. The Secretary of State shall be named as the respondent and the State Printer and the person or official who authored the copy in question shall be named as real parties in interest. If the proceeding is initiated by the Secretary of State, the State Printer shall be named as the respondent.
(a) Whenever a city, county, or city and county is required by Section 203 (42 U.S.C. Sec. 1973aa-1a) or Section 4(f)(4) (42 U.S.C. Sec. 1973b(f)(4)) of the federal Voting Rights Act of 1965 to provide a translation of ballot materials in a language other than English, the Secretary of State shall provide a translation of the ballot title and summary prepared pursuant to Sections 9050 and 9051 and of the ballot label prepared pursuant to Section 13247 in that language to the city, county, or city and county for each state measure submitted to the voters in a statewide election not later than 68 days prior to that election.
(b) When preparing a translation in a language other than English pursuant to subdivision (a), the Secretary of State shall consult with an advisory body consisting of language experts and nonpartisan organizations that advocate on behalf of, or provide services to, individuals that speak that language.
(c) All translations prepared pursuant to this section shall be made available for public examination in the same time and manner as the ballot pamphlet is made available for public examination in accordance with Section 88006 of the Government Code and Section 9092 of this code.
(d) The local elections official shall use that translation of the ballot label on the sample ballot and the official ballot and may not select or contract with another person to provide translations of the same text.
The order in which all state measures that are to be submitted to the voters shall appear upon the ballot is as follows:
(a) Bond measures in the order in which they qualify.
(b) Constitutional amendments in the order in which they qualify.
(c) Other legislative measures in the order in which they are approved by
(d) Initiative measures in the order in which they qualify.
(e) Referendum measures in the order in which they qualify.
(a) Commencing with the November 3, 1998, general election, all state measures in all elections at which state measures are submitted to a vote of the voters shall be numbered in a continuous sequence, commencing with the number “1” and continuing in numerical sequence for a period of 10 years from the year of commencement.
(b) At the completion of a 10-year cycle, the numbering sequence shall recommence with the number “1” at the next election at which state measures are submitted to a vote of the voters.
Every constitutional amendment, bond measure, or other legislative measure submitted to the people by the Legislature shall appear on the ballot of the first statewide election occurring at least 131 days after the adoption of the proposal by the Legislature.
The press release shall be mailed at least 120 days prior to the date of the election at which a measure is to be voted upon.
Whenever the Attorney General prepares a ballot label, the Attorney General shall file a copy of the ballot label with the Secretary of State. The Secretary of State shall make a copy of the ballot label available for public examination prior to the printing of the ballot label on any ballot. The public shall be permitted to examine the ballot label for at least 20 days, and the Secretary of State may consolidate the examination requirement under this section with the public examination requirements set forth in Section 9092. A voter may seek a writ of mandate requiring a ballot label, or portion thereof, to be amended or deleted. The provisions set forth in Section 9092 concerning the issuance of the writ and the nature of the proceedings shall be applicable to this section.
Arguments prepared by legislators and their appointees shall be submitted to the Secretary of State no later than a date to be designated by the Secretary of State. The arguments may not be amended or changed after submission.
If an argument for or an argument against a measure submitted to the voters by the Legislature has not been filed by a Member of the Legislature, any voter may request the Secretary of State’s permission to prepare and file an argument for either side, on which no argument has been prepared by a Member of the Legislature. The Secretary of State shall grant permission unless two or more voters request permission to submit arguments on the same side of a measure, in which event the Secretary of State shall designate one of the voters to write the argument. Any argument prepared pursuant to this section shall be submitted to the Secretary of State by a date sufficient to meet ballot printing deadlines.
Note 3 November 2008 Ballot wording taken from the League of Women Voters Website
Note 4 Senate Bill 3034 Chapter 20 part 2704.21 SEC. 12
2002, 2004, and 2006 Statue Chapters referencing High-Speed Rail legislation
Note 5 Senate Bill 3034 History
Note 6 Reason Foundation Due Diligence Report
Note 7 Judge Kopp’s cover letter accompanying the release of the 2008 HSR Business Plan
Note 8 High Speed Rail Authority Press Release regarding its 2008 Business Plan