Californians for Property Rights

MEASURE W’S UNQUALIFIED ELECTORS

Unqualified electors is legalese for “Persons who shouldn’t have voted in an election.” There is compelling evidence, provided by the County itself, that enough unqualified electors were wrongly sent ballots for the Measure W election to have altered its outcome.

The question is: who should have voted? The answer: registered voters who reside within Cal-Am’s service area. Article XIII of California’s Constitution requires that ballot measures to finance a general benefit achieve a 2/3 supermajority, while measures to finance a special benefit require only a simple majority. Because Measure W required a 2/3 plurality for passage, it concerned a general benefit conferred on real property located in the district (Article XIIID, Section 2). A general benefit (in this case a water connection) must be available generally, that is, available to every property within the area to be balloted and subsequently taxed.

This principle is underscored by considering a typical school bond measure. The schools are available to all children living within a certain area (the school district), but only to those children. As a result, a school bond measure must confine its ballot to registered voters residing within the school district boundaries, since only resident children can attend the district schools. It is illegal for a school district to ballot voters outside of its service area. Yet the County acknowledges that it created a Community Facilities District (CFD) that includes properties on wells outside Cal-Am’s service area, knowingly sending ballots to registered voters residing on properties for which the benefit of a Cal-Am water hookup is unavailable. The Elections Department wrote in an August 2nd email that the Environmental Health Department didn’t have an official roster from Cal Am stating who they supplied water, so they tried to approximate a district consisting of properties that receive water from Cal Am Water Co (emphasis added). California Government Code Section 53313 states: A community facilities district may be established to finance services within an area.

The CFD and its service area need to be coterminous, so that the same properties 1) provide the resident qualified electors, 2) are levied the bond tax, and 3) have available the bond-financed benefit or service. The County has compounded its offense by offering the unqualified electors an exemption from the tax Measure W proposes. This is analogous to a school system intentionally balloting voters outside its district as to whether property owners inside the district should pay a bond tax. In addition, both before and during the election, the County’s public noticing of its intention to exempt voters on wells from the tax actually induced those voters to support a County-backed ballot measure. Even the appearance of a quid pro quo—vote for the measure, receive a tax exemption—undeniably corrupted the electoral process.

How many people were wrongly balloted in Measure W? The exact number can only be determined if the County reveals the number of residences (and registered voters) that are in the CFD, but not in Cal-Am’s service area. There is statistical evidence however, based on the vote count, that the number of unqualified electors is substantial. Cal-Am has about 1300 domestic connections, with supposedly about double that number of registered voters eligible to vote in Measure W. For that to be true, residences served by Cal-Am would need to average two registered voters per household. Although Felton may have a higher-than-average percentage of citizenry and voter registration, it is nowhere near universal. Moreover, LAFCo has recently estimated that 3,350 people live within the Cal-Am service area. Deducting a predictable number of children and non-citizens, the County claims that the Cal-Am service area has significantly more registered voters than LAFCo believes there are adult citizens. The unavoidable conclusion: many people were balloted on Measure W who should not have been. And the margin of passage was only about 130 votes.

The fact that persons outside Cal-Amís service area would be allowed to vote on Measure W appears to have been underreported prior to the election. For example, the Santa Cruz Sentinel stated that the County intended to schedule a vote for Cal-Am’s 1315 customers in Felton to decide if they are willing to tax themselves to buy the waterworks. The Valley Post reported as recently as July 5th that If you are one of the 1300 or so CalAm customers and a registered voter in Felton, then there is a ballot in your mailbox. Even the County’s Resolution of Intention recognized that the people to be taxed should make that decision for themselves: Land Secured Financing may be initiated by the owners/residents of an area which will be subject to the payment of the assessment or special tax.

So what should happen going forward? Voters residing within Cal-Am’s service area can file a ballot protest in County Superior Court before the 30-day deadline of August 25th, in particular citing Elections Code Section 16100(d), that illegal votes were cast. The unqualified electors on wells should also protest the ballot, because if the County insists they are qualified electors, the County’s ability to exempt them may be undermined. There is ample precedent that the properties whose residents can legally vote for a bond measure are the same as the properties that are subject to the tax. In plain English, well owners may get stuck with the tax after all. For its part, the County should proactively acknowledge that the election was fatally mishandled and cancel its results. If petitions are resubmitted in the future, the County should verify that each petition is from a registered voter residing within the Cal-Am service area, an elementary (and essential) validation procedure that the County neglected to do before authorizing the Measure W ballot.

Terrence D. Gossett, CPR Director
Don Bacon, CPR Public Policy Advisor