In a Way, Judges Rule on Partisanship at SoS…

Pete Peterson
Candidate (R) for California Secretary of State, and Executive Director of the Davenport Institute for Public Engagement at Pepperdine’s School of Public Policy

In the intriguing December article, “Election Officials Defend their Partisan Status,” in the left-leaning American Prospect, California Secretary of State Debra Bowen defended Party affiliations for the statewide office meant to defend the civic voice of all voters: “It’s better for voters to know and to be able to hold their secretaries of state accountable.” I can agree with the SoS here, but there are different shades of partisanship: one towards a Party or platform (somewhat acceptable), another towards political relationships (not).

It appears that voters aren’t the only ones who can “hold their secretaries of state accountable.” The 3rd District Court has done exactly that, deeming unconstitutional (in a unanimous 3-0 verdict) the usage of empty spot bills in a budget package, which allowed Governor Brown to have his tax measure regarded as a constitutional amendment, boosting it to the top of a crowded field. The Howard Jarvis Taxpayers’ Association (HJTA) lodged the suit back in July, naming Bowen as the respondent and the Legislature as parties of interest.

This was the second time Bowen’s office was sued over the use of AB 1499. Democrat Molly Munger had previously attempted to prevent implementation of the bill (or as the Court dubbed it – “an empty vessel”) in order to give her tax measure a higher placement. As Munger’s attorney told the SacBee during the kerfuffle, “This attempt to change the rules in the middle of the game is a manipulation of the political process, and it does not qualify as a budget-related bill.”

As head of the HJTA, Jon Coupal, wrote in these pages back in July, “Governor Brown is playing fast and loose with California election law and the Secretary of State should not be an accomplice.  She runs the very real risk of being perceived as a willing participant in the perversion of the integrity of the ballot process, not a defender of it.” We all knew it was a gimmick at the time, but now we know the actions taken by the Legislature and the Secretary of State were unconstitutional.

With Prop 30, regaled as the fiscal silver bullet for the state’s chronic budget deficits, passing by over one million votes, the natural tendency of some is to let bygones be bygones. As the SF Chronicle opines, “the ballot order probably didn’t affect the outcome.” Back in July, campaign expert Mike Madrid told California Forward that the ballot numbering didn’t matter anyway, since, “the vast majority of voters are going to know whether they’re voting for the Munger measure or the Governor’s measure. They’re not dumb.”

Then why all the maneuverings in Sacramento to get that top placement? Maybe the Governor, the Legislature, and the Secretary of State had seen this research, or this research, or this research.  Of course, no one can blame Brown or the Democrats in the Legislature for not trusting in the intelligence of California voters, but the Secretary of State’s office should. It’s their job not only to trust, but also to protect the ballot process from such machinations.

Claiming logistical challenges in printing and notifying the public and the campaigns of the possible new ballot numbers, the Secretary’s attorneys made no legal case against HJTA. But these communications problems were only created when Bowen immediately set the ballot numbers after an earlier stay generated by the Munger case expired.

In those two minutes between the Munger case resolving and the Secretary’s deciding on numbering Prop 30, an opportunity existed for the “Profiles in Courage” award winner to show her mettle again – to defend the sanctity of the ballot process, and at least speak out against the AB 1499 scheme. Back in 2007, the Secretary took a hard line against voting machine vendors and county elections officials after security concerns with new machines were uncovered. More than Prop 30 this gutsy decision had immense fiscal (millions of dollars) and timeline implications. I guess standing up to the Governor, and forcing campaigns to spend tens of thousands of dollars revising ballot information proved too big a hill to climb.

With the Prop 30 tax increases now in place, three judges have stepped in where the SoS feared to tread. Again, I can agree with Bowen’s position on partisan secretaries of state, but when that partisanship is not related to Party or principles (Munger ‘s a Democrat, of course), having the appearance of inside Sacramento politics, voters should really “hold their secretaries of state accountable.”

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