News

Grand jury takes aim at political chicanery in ballot language

Santa Clara County panel argues that cities, agencies craft misleading ballot labels with 'proponent's bias'

Rama Akkaraju casts her ballot on Election Day on Nov. 6, 2018. Photo by Veronica Weber.

When voters cast their ballots to support or oppose a local measure, it's tempting to assume that they understand what's at stake.

But when it comes to ballot language, truth is often bent for political purposes, forcing voters to deal with questions that are murky, misleading or, in some cases, outright deceptive.

That, at least, is the conclusion from the Santa Clara County Civil Grand Jury, which surveyed the roughly 50 jurisdictions within the county that are eligible for placing measures on the ballot and found bias in favor of proponents, who incidentally and not coincidentally tend to be the people writing the ballot language.

The grand jury's report, which is titled, "If you only read the ballot, you're being duped," analyzes the language that public entities craft for their ballots and identifies "tricks of the trade" that they use to garner voter support. Among the most egregious examples is Valley Water's Measure A, which squeaked to approval in June and which expands term limits for the water agency's board members from three to four terms.

Voters casting their ballots on Measure A were confronted with the question: "Shall the measure amending the Santa Clara Valley Water District Ordinance 11-01 to limit Board members to four successive four-year terms be adopted?" Because the ballot question does not inform voters of existing limits, it created the impression that the measure establishes term limits rather than expands them, the grand jury argued.

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"The ballot question did not reflect what the Water District wanted to do," the grand jury wrote. "The Water District wanted to extend term limits, but it wrote the ballot question without using the words 'extend,' 'change,' or 'increase.' Instead, the Water District characterized the ballot measure as setting term limits, which is a mischaracterization of what Measure A was actually about," the grand jury wrote.

The tactic also was used in 1998, when Santa Clara County asked the voters to expand the number of terms for supervisors from two to three. Measure E asked them whether the county shall "limit the number of terms a member of the Board of Supervisors may serve to three terms, consisting of four years each?" The measure passed with 55.5% of the voters.

"By not being transparent, this tactic of ballot question drafting is tantamount to a lie by omission; it borders on deceiving the public. From Measure E in 1998 to Measure A this year, 24 years later, the climate has not changed."

In many cases, ballot questions list popular services that the measure would fund even if the measure itself doesn't really require spending of this sort. Palo Alto has two such measures: Measure K, which would establish a business tax to raise funds "for public safety, affordable housing, rail crossing safety, homeless services and general services," according to the ballot question; and Measure L, which would approve the city's historic practice of transferring funds from the municipal natural gas utility to the general fund and which purports to "support general city services such as roads; parks, libraries; climate change reduction, police, fire, emergency medical, and 9-1-1 response."

Neither measure actually requires proceeds to be spent in these areas, though the City Council tried to instill confidence in the business tax measure by passing a separate resolution signaling the city's intent to use business tax proceeds for public safety, rail improvements and housing. For the utility measure, the council will have full discretion on how to spend the proceeds.

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Furthermore, Measure L states that the policy will be in place "until ended by voters," a clause that is common to tax and bond measures but that the grand jury found to be misleading because the actual measure does not provide any mechanism for the abolition of the funding mechanism. It is one of four measures in this November's election that contains such language. Two of them were submitted by the city of Santa Clara, which is similarly looking to affirm utility transfers to its general fund (Measure G) and to update its business license tax (Measure H). Los Gatos also is looking to amend its business license tax by asking voters to approve Measure J.

Such language, according to the grand jury, has the effect of "falsely implying that the measure itself provided for repeal or that voters would have an opportunity to repeal the tax when they did not."

Other examples of "tricks and tactics" that the grand jury identifies in its report include using "feel good" words (like an assurance that all funds will be spent locally); submitting bond measures in which the questions state that there will be "no increase in tax rates" (which diverts voters from what's actually at issue); and including language that suggests that there would be independent audits and citizens' oversight of spending, even if these requirements aren't in the actual measure (as was the case with a Milpitas sales tax measure in 2020).

The Santa Clara County review builds on work that the Alameda County Grand Jury performed last year. The Alameda report made a case for the existence of "proponent bias" in many ballot questions. Even though the California Election Code requires "a true and impartial synopsis of the purpose of the proposed measure, and shall be in language that is neither argumentative nor likely to create prejudice for or against the measure," the Alameda grand jury found that local agencies have wide latitude in crafting such language and that citizens who wish to challenge ballot language face "an uphill battle" in obtaining a court order to amend the language.

The Santa Clara County Civil Grand Jury makes a similar case for "proponent's bias," a problem it ties to the fact that it is the supporters (cities, counties and public agencies) that propose the measure.

"Once the decision is made by the government entity to spend the money to go to ballot, a lot of pressure is put on the entity to do whatever it takes to secure a win," the report states. "For this reason, proponents of ballot measures stay focused on the result, hiring high-priced election consultants, attorneys, and opinion pollsters to carefully frame the ballot question to achieve the desired outcome. Successful elections will reward those that are behind them."

With so much at stake, proponents sometimes sacrifice "context, clarity, truthfulness and transparency in ballot question wording in favor of pure advocacy," the report states. The grand jury underscored descriptions of the Valley Water measure in local news services, which included "false," "dishonest" and "not ethical."

"What the Water District did through Measure A has severe ramifications because it creates distrust between the government agency and the people the agency is supposed to serve and protect," the report states. "Going forward, Santa Clara County residents will likely question the integrity and ethical behavior of the Water District."

To address these issues, the grand jury proposes creating an oversight commission to review ballot questions and empowering the commission to reject those that it deems biased or misleading. Another option is requiring cities and other public agencies to submit their proposed ballot language to the county counsel for review. The county counsel would be authorized to "reject non-conforming or deficient wording and to compel revisions," according to the report.

Sample ballots in various languages at the Palo Alto Art Center in Palo Alto on Nov. 3, 2020. Photo by Magali Gauthier.

Not everyone supports such measures. Palo Alto City Attorney Molly Stump wrote a memo that argues that requiring the county counsel to review and edit local measures for charter cities would impinge on the constitutional authority of these cities to control their elections.

"The effect would be to reduce local control by shifting authority to a government entity that is less knowledgeable about and responsive to local residents," Stump wrote.

Stump wrote that her office agrees with the grand jury that "the clarity, accuracy and usefulness of ballot measure language is an important issue, and we thank them for their efforts to promote transparency and effective communication."

"In our view, however, the report overlooks important aspects of the legal framework that governs elections, leading to conclusions that are not well-supported and recommendations that will not serve our community well," the memo wrote.

Stump also took issue with the grand jury's conclusion that the words "until ended by voters" in Measure L are misleading. The measure does not include a measure-specific provision for repeal because voters already have that power under the Elections Code, her memo states.

"Under state law voters exercise that power by circulating a petition," Stump wrote. "For these reasons, 'until ended by voters' is a true statement of the law, and therefore we do not believe it is misleading."

Mayor Pat Burt also disagreed with the grand jury's finding that the wording in Measure L is misleading. He noted, however, that the council also has the power to decrease or eliminate a tax. The council cannot, however, increase a tax without voter approval — a factor that should give voters another assurance.

"The grand jury really misunderstood local election law, and the language that is in Measure L is common and appropriate and intended to clarify to the voters that it would continue unless voters decided otherwise in the future," Burt said.

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Gennady Sheyner
 
Gennady Sheyner covers the City Hall beat in Palo Alto as well as regional politics, with a special focus on housing and transportation. Before joining the Palo Alto Weekly/PaloAltoOnline.com in 2008, he covered breaking news and local politics for the Waterbury Republican-American, a daily newspaper in Connecticut. Read more >>

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Grand jury takes aim at political chicanery in ballot language

Santa Clara County panel argues that cities, agencies craft misleading ballot labels with 'proponent's bias'

by / Palo Alto Weekly

Uploaded: Wed, Oct 12, 2022, 9:54 am

When voters cast their ballots to support or oppose a local measure, it's tempting to assume that they understand what's at stake.

But when it comes to ballot language, truth is often bent for political purposes, forcing voters to deal with questions that are murky, misleading or, in some cases, outright deceptive.

That, at least, is the conclusion from the Santa Clara County Civil Grand Jury, which surveyed the roughly 50 jurisdictions within the county that are eligible for placing measures on the ballot and found bias in favor of proponents, who incidentally and not coincidentally tend to be the people writing the ballot language.

The grand jury's report, which is titled, "If you only read the ballot, you're being duped," analyzes the language that public entities craft for their ballots and identifies "tricks of the trade" that they use to garner voter support. Among the most egregious examples is Valley Water's Measure A, which squeaked to approval in June and which expands term limits for the water agency's board members from three to four terms.

Voters casting their ballots on Measure A were confronted with the question: "Shall the measure amending the Santa Clara Valley Water District Ordinance 11-01 to limit Board members to four successive four-year terms be adopted?" Because the ballot question does not inform voters of existing limits, it created the impression that the measure establishes term limits rather than expands them, the grand jury argued.

"The ballot question did not reflect what the Water District wanted to do," the grand jury wrote. "The Water District wanted to extend term limits, but it wrote the ballot question without using the words 'extend,' 'change,' or 'increase.' Instead, the Water District characterized the ballot measure as setting term limits, which is a mischaracterization of what Measure A was actually about," the grand jury wrote.

The tactic also was used in 1998, when Santa Clara County asked the voters to expand the number of terms for supervisors from two to three. Measure E asked them whether the county shall "limit the number of terms a member of the Board of Supervisors may serve to three terms, consisting of four years each?" The measure passed with 55.5% of the voters.

"By not being transparent, this tactic of ballot question drafting is tantamount to a lie by omission; it borders on deceiving the public. From Measure E in 1998 to Measure A this year, 24 years later, the climate has not changed."

In many cases, ballot questions list popular services that the measure would fund even if the measure itself doesn't really require spending of this sort. Palo Alto has two such measures: Measure K, which would establish a business tax to raise funds "for public safety, affordable housing, rail crossing safety, homeless services and general services," according to the ballot question; and Measure L, which would approve the city's historic practice of transferring funds from the municipal natural gas utility to the general fund and which purports to "support general city services such as roads; parks, libraries; climate change reduction, police, fire, emergency medical, and 9-1-1 response."

Neither measure actually requires proceeds to be spent in these areas, though the City Council tried to instill confidence in the business tax measure by passing a separate resolution signaling the city's intent to use business tax proceeds for public safety, rail improvements and housing. For the utility measure, the council will have full discretion on how to spend the proceeds.

Furthermore, Measure L states that the policy will be in place "until ended by voters," a clause that is common to tax and bond measures but that the grand jury found to be misleading because the actual measure does not provide any mechanism for the abolition of the funding mechanism. It is one of four measures in this November's election that contains such language. Two of them were submitted by the city of Santa Clara, which is similarly looking to affirm utility transfers to its general fund (Measure G) and to update its business license tax (Measure H). Los Gatos also is looking to amend its business license tax by asking voters to approve Measure J.

Such language, according to the grand jury, has the effect of "falsely implying that the measure itself provided for repeal or that voters would have an opportunity to repeal the tax when they did not."

Other examples of "tricks and tactics" that the grand jury identifies in its report include using "feel good" words (like an assurance that all funds will be spent locally); submitting bond measures in which the questions state that there will be "no increase in tax rates" (which diverts voters from what's actually at issue); and including language that suggests that there would be independent audits and citizens' oversight of spending, even if these requirements aren't in the actual measure (as was the case with a Milpitas sales tax measure in 2020).

The Santa Clara County review builds on work that the Alameda County Grand Jury performed last year. The Alameda report made a case for the existence of "proponent bias" in many ballot questions. Even though the California Election Code requires "a true and impartial synopsis of the purpose of the proposed measure, and shall be in language that is neither argumentative nor likely to create prejudice for or against the measure," the Alameda grand jury found that local agencies have wide latitude in crafting such language and that citizens who wish to challenge ballot language face "an uphill battle" in obtaining a court order to amend the language.

The Santa Clara County Civil Grand Jury makes a similar case for "proponent's bias," a problem it ties to the fact that it is the supporters (cities, counties and public agencies) that propose the measure.

"Once the decision is made by the government entity to spend the money to go to ballot, a lot of pressure is put on the entity to do whatever it takes to secure a win," the report states. "For this reason, proponents of ballot measures stay focused on the result, hiring high-priced election consultants, attorneys, and opinion pollsters to carefully frame the ballot question to achieve the desired outcome. Successful elections will reward those that are behind them."

With so much at stake, proponents sometimes sacrifice "context, clarity, truthfulness and transparency in ballot question wording in favor of pure advocacy," the report states. The grand jury underscored descriptions of the Valley Water measure in local news services, which included "false," "dishonest" and "not ethical."

"What the Water District did through Measure A has severe ramifications because it creates distrust between the government agency and the people the agency is supposed to serve and protect," the report states. "Going forward, Santa Clara County residents will likely question the integrity and ethical behavior of the Water District."

To address these issues, the grand jury proposes creating an oversight commission to review ballot questions and empowering the commission to reject those that it deems biased or misleading. Another option is requiring cities and other public agencies to submit their proposed ballot language to the county counsel for review. The county counsel would be authorized to "reject non-conforming or deficient wording and to compel revisions," according to the report.

Not everyone supports such measures. Palo Alto City Attorney Molly Stump wrote a memo that argues that requiring the county counsel to review and edit local measures for charter cities would impinge on the constitutional authority of these cities to control their elections.

"The effect would be to reduce local control by shifting authority to a government entity that is less knowledgeable about and responsive to local residents," Stump wrote.

Stump wrote that her office agrees with the grand jury that "the clarity, accuracy and usefulness of ballot measure language is an important issue, and we thank them for their efforts to promote transparency and effective communication."

"In our view, however, the report overlooks important aspects of the legal framework that governs elections, leading to conclusions that are not well-supported and recommendations that will not serve our community well," the memo wrote.

Stump also took issue with the grand jury's conclusion that the words "until ended by voters" in Measure L are misleading. The measure does not include a measure-specific provision for repeal because voters already have that power under the Elections Code, her memo states.

"Under state law voters exercise that power by circulating a petition," Stump wrote. "For these reasons, 'until ended by voters' is a true statement of the law, and therefore we do not believe it is misleading."

Mayor Pat Burt also disagreed with the grand jury's finding that the wording in Measure L is misleading. He noted, however, that the council also has the power to decrease or eliminate a tax. The council cannot, however, increase a tax without voter approval — a factor that should give voters another assurance.

"The grand jury really misunderstood local election law, and the language that is in Measure L is common and appropriate and intended to clarify to the voters that it would continue unless voters decided otherwise in the future," Burt said.

Comments

Rajiv Bhateja
Registered user
Southgate
on Oct 12, 2022 at 10:19 am
Rajiv Bhateja, Southgate
Registered user
on Oct 12, 2022 at 10:19 am

The ballot language did not eliminate the 3-year limit. It merely imposed a(n additional) 4-year limit. Someone should file a lawsuit stating this.

And the dirtbags who pulled this stunt should never be allowed to run for public office again. Ever.


Online Name
Registered user
Embarcadero Oaks/Leland
on Oct 12, 2022 at 10:45 am
Online Name, Embarcadero Oaks/Leland
Registered user
on Oct 12, 2022 at 10:45 am

How typical of PA to use deceptive ballot language for Measures K and L. and for city attorney Molly Stump and our other "leaders" to defend such practices. Remember these are the same folks who base huge spending initiatives on deceptive surveys that don't let respondents say, "No, we don't want to spend $144,000,000 on a risky fiber network." Instead, they use the "survey" to shill for advance deposits and defend a risky project that could result in "catastrophic losses" if enough people don't adopt City Fiber.

And who can forget CC's official response to the ballot initiative to limit office development downtown and at Stanford where they actually suggested a limit "would endanger education as we know it."

Shameful. Vote no on both measures, esp. since our "leaders" never consulted residents on the business tax and the city CONTINUES to stall on paying US our settlements for overcharging us as per the 2016 lawsuit.. Why do we have to wait ANOTHER 3 years for the city to issue refunds? Are they paying us interest?

And some city council candidates say decisions should be left to staff without oversight!


ALB
Registered user
College Terrace
on Oct 12, 2022 at 10:47 am
ALB, College Terrace
Registered user
on Oct 12, 2022 at 10:47 am

I agree with the city attorney and mayor that the language is not misleading regarding Measure L. The civil grand jury does not grasp that voters have the right to change this measure in the future. In this case the civil grand jury has overstepped and for various and unknown reasons decided to disturb the legal process.


ALB
Registered user
College Terrace
on Oct 12, 2022 at 11:00 am
ALB, College Terrace
Registered user
on Oct 12, 2022 at 11:00 am

Re: Measure K that is not addressed by the civil grand jury. Voters can also going forward amend Measure K in the future to augment the business tax.

The city council did not engage with the public regarding Measure K. Palo Alto is the only city not to have a business tax. Many residents feel let down by the council for not fighting for a fair amount. Many feel that the CC simply did not trust the public and chose to have no oposition from businesses including Stanford. Remember small businesses are exempt as any business under ten thousand square feet are not taxed.

Vote for Measure L.


Online Name
Registered user
Embarcadero Oaks/Leland
on Oct 12, 2022 at 11:22 am
Online Name, Embarcadero Oaks/Leland
Registered user
on Oct 12, 2022 at 11:22 am

Re Measure L, ":Furthermore, Measure L states that the policy will be in place "until ended by voters," a clause that is common to tax and bond measures but that the grand jury **found to be misleading because the actual measure does not provide any mechanism for the abolition of the funding mechanism.** It is one of four measures in this November's election that contains such language. Two of them are being submitted by the city of Santa Clara, which is similarly looking to affirm utility transfers to its general fund (Measure G) and to update its business license tax (Measure H). Los Gatos also is looking to amend its business license tax by asking voters to approve Measure J."

Such language, according to the grand jury, has the effect of "falsely implying that the measure itself provided for repeal or that voters would have an opportunity to repeal the tax when they did not."


Vote No on Measure L.


Annette
Registered user
College Terrace
on Oct 12, 2022 at 11:45 am
Annette, College Terrace
Registered user
on Oct 12, 2022 at 11:45 am

It would be helpful to know who did craft the language for K and L; that would inform conclusions about this fairness debate.


Consider Your Options.
Registered user
Another Palo Alto neighborhood
on Oct 12, 2022 at 11:58 am
Consider Your Options. , Another Palo Alto neighborhood
Registered user
on Oct 12, 2022 at 11:58 am

As a Palo Alto resident who closely follows city budgets and Council agendas, I am voting in favor of both Measures K and L. We have a serious budget problem. L will continue a longstanding practice of using a percentage of the Utility Users tax to help fund services, a practice that voters approved in the past. We still pay less than PG&E customers, and our utility fees help pay for local services, instead of lining stockholder pockets. It is true that the city was slow to respond to new laws that required them to put a new measure forward to continue this practice. That definitely was a misjudgment. Nonetheless, this existing revenue stream is still badly needed.

Measure K requires large businesses to pay a more fair share. They are the largest beneficiaries of Prop 13 tax protection even though they contribute heavy demands on emergency services, our transportation system, etc. The city spends millions meeting their needs. Other cities have passed similar measures for this reason.

This well informed citizen supports both measures, and I have been watching and deeply reading city budgets for decades. If we don't get them passed, citizens can expect to see huge cuts that will directly impact each and every one of us.

The pedantic tone of this story is insulting, an SCC panel seeming to make the assumption that citizens are uninformed. Many voters like me closely follow Council agendas and the budget process, viewing it as a civic duty in a democracy. They also regularly read the news.

A vote in favor of these measures will insure that the city can maintain services we need and value, and K will draw more revenues from large businesses who currently do not pay their fair share. Would I prefer a higher business tax? Yes. But that was a political impossibility. These very large corporations threatened to combine resources to spend heavily to defeat the higher Council proposal. They would have won handily. Please support Measures K & L.


ALB
Registered user
College Terrace
on Oct 12, 2022 at 11:58 am
ALB, College Terrace
Registered user
on Oct 12, 2022 at 11:58 am

Annette poses the right question. My understanding is the civil grand jury is comprised of citizens who are not attorneys.


SRB
Registered user
Mountain View
on Oct 12, 2022 at 12:36 pm
SRB, Mountain View
Registered user
on Oct 12, 2022 at 12:36 pm

There is one potential remedy to the self-serving and misleading Measure A from the Water District: vote out the directors (locally Kremen) who were behind that measure. That way they won't get to benefit from their deception.


Native to the BAY
Registered user
Old Palo Alto
on Oct 12, 2022 at 1:05 pm
Native to the BAY, Old Palo Alto
Registered user
on Oct 12, 2022 at 1:05 pm

Thank you @consider your options. I needed better understanding of both. You have assisted me in my decision. I've been on the fence about L and closer to my decision . The business tax survey calls to voters was flawed. "the strongly agree, agree, moderately agree..." was okay. But just ask at the end, at this point in time are you a "yes, no or undecided" on the measure would have been really appropriate. Especially after spending 20 minutes on the phone with an out-of-state survey caller.


cr
Registered user
another community
on Oct 12, 2022 at 1:09 pm
cr, another community
Registered user
on Oct 12, 2022 at 1:09 pm

Redwood City School District's ballot question is worse than any of these. They refused to fix the deceptive ballot question even after I pointed it out BEFORE the submitted it to the county. They think it's sufficient to just have the long, ballot measure resolution (which few read) be correct and complete: Web Link

And now they are using the taxpayer funded, district controlled website to share biased information that are in violation of California Education Code 7054 and 7058. Again, despite my demand they fix this, they keep doing it. Not following the rules alone is reason enough to vote NO.


Native to the BAY
Registered user
Old Palo Alto
on Oct 12, 2022 at 1:43 pm
Native to the BAY, Old Palo Alto
Registered user
on Oct 12, 2022 at 1:43 pm

@ALB Attorney's who are not citizens, nor residents would be far worse...


resident3
Registered user
Another Palo Alto neighborhood
on Oct 12, 2022 at 2:14 pm
resident3, Another Palo Alto neighborhood
Registered user
on Oct 12, 2022 at 2:14 pm

@consider your options,

“We still pay less than PG&E customers, and our utility fees help pay for local services, instead of lining stockholder pockets”

You can’t promise this will be the case in the future and comparing a utility accountable to an unaccountable council with a business being accountable to stockholders?

Stockholders in a business aren’t “lining” their pockets, they have put money into the business and expect a return and accountability. If I am an unhappy stockholder, I can sell my shares.

Contrast this to a City that miscalculates right and left, without anyone really accountable. Council people basically rotate themselves in and out and they don’t lose anything.

Whatever you may think about the measures, the fact that the city is in a hole is actually not a good reason to pour more money under threat of losing unknown services.


Online Name
Registered user
Embarcadero Oaks/Leland
on Oct 12, 2022 at 5:50 pm
Online Name, Embarcadero Oaks/Leland
Registered user
on Oct 12, 2022 at 5:50 pm

Annette states. "It would be helpful to know who did craft the language for K and L; that would inform conclusions about this fairness debate."

Indeed. Wouldn't that language have been drafted by a City employee/consultant and subject to review by the City Attorney, City Manager and staff. Why else would the City Attorney go to such lengths to defend the language?


Rob
Registered user
Midtown
on Oct 13, 2022 at 4:16 pm
Rob, Midtown
Registered user
on Oct 13, 2022 at 4:16 pm

How about an apology from the city for ripping us off for all these years? Ballot chicanery is not new just look at the gas tax language the state used this is what you get with one party rule corruption. And you ask who crafted the language? It was the attorneys and the scheming politicians. Also stop saying PA utilities is less then PGE! I owned 2 of the same businesses one in MP and one in PA the Menlo location is 3 times larger and does twice the volume but my utilities bill for PA was always more? it didn't make any sense until I found out we were being fleeced that's why I sold and left PA right in time for the new friendly business tax.


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