Guest Opinion | The Case for Keeping Local-only Pasadena Elections

Published : Friday, July 28, 2017 | 4:52 AM

Skip Hickambottom (l) and Dale Gronemeier (r)

The City of Pasadena Charter legally establishes the City of Pasadena and the Pasadena Unified School District. The City Charter requires local elections to be held in odd-year election cycles — as a result, they are local-only rather than, as with many cities, even-year elections that are concurrent with federal/state elections. The California Legislature has passed a law mandating that Pasadena shift to even-year, concurrent elections – if the law applies not just to general law cities but to charter-law cities such as Pasadena. As a charter city, Pasadena has a right under the California Constitution to determine its own election timing. But its choice to separate local elections from state/federal elections is threatened by a an opinion from the California Attorney General’s Office which asserts that the City and PUSD must align their elections with the federal/state elections. We submit that the AG Opinion is a faulty legal analysis. We urge the Mayor and City Council to reject it and instead assert the City’s constitutionally-protected home rule rights to decide its own election processes.

The downside of concurrent elections – upballot noise drowning out downballot attention

Glendale Assemblyman Mike Gatto said at the hearing on SB 415 that “[w]hen a ballot is too long, when you get to the bottom of a ballot, it makes it harder for that candidate to break through.” Long ballots, voter fatigue, and downballot voter abstention are part of a broader reduction in the quality of local elections from concurrent elections. Concurrent elections tend to weaken the vigor of local democracy not just by relegating local candidates and issues to the bottom of the ballot but also by diverting media attention and resources to the top-ballot contests and away from down-ballot candidates and issues. Dilution of focus and resources for local races occurs at practically all levels; a few illustrations can demonstrate this: Yard signs: The many homeowner yard signs for Andy Wilson and Phil Hosp in the close Pasadena District 7 Councilmember races focused attention on that contest and the candidates’ issues. There undoubtedly would have been fewer signs for that contest if the election were a concurrent one because many homeowners would have opted for signs for presidential, congressional, state or county supervisor contest. The result would have been drastically less focus from yard-signs because the Council candidates would have been able to place many fewer yard signs and, even when they did place them, many of them would be just one of several signs. Candidate forums: The same diluted focus for local candidates and issues would occur with candidate forums. Some organizations sponsoring candidate forums would try to expand the local-only forums that accompany local-only elections into forums for all races; longs ballots would then be paralleled by or longer meetings, more exhaustion of attention spans, and less focus on each candidate. Alternatively, the number of forums would increase and tend to overload meeting schedules. Fund-raising: Jesse Unruh coined the phrase “money is the mother’s milk of politics.” Campaigns cost money. The demands of contributing to non-local elections would drain away contributions needed for local contests.

Relegating local contests to the ballot’s bottom has real-life consequences. A 2002 study, Hajinal, Lewis, and Louch “Municipal Elections in California: Turnout, Timing and Competition” found that “concurrent elections are associated with greater success of incumbents in California municipal elections.” Incumbents win the overwhelming majority of elections because of their name-recognition and their easier access to contributions; non-incumbent challengers usually depend upon a vigorous local discussion that is less likely to reach voters with the competition of upballot races. A 2010 empirical study, Berry & Gersen “The Timing of Elections” 77 The University of Chicago Law Review 37 (2010) compared the rate of teacher pay for California school districts with local-only elections to those after they shifted from local-only to concurrent elections; it found that “[t]eacher salaries go down in a district by roughly $1,200 … after the switch from odd-year to even-year elections.” There is thus strong empirical evidence that concurrent elections disadvantage local teachers and parents who advocate that stronger public education comes from stronger funding; this disadvantage presumably comes from these local voices being diluted in concurrent elections.

The 2015 legislation requiring concurrent elections

In 2015, the State Legislature passed SB 415, the mislabeled “California Voter Participation Rights Act.” It has nothing to do with protecting voter rights to participate in local elections. Rather, it seek to encourage more voluntary voter participation. It requires cities and schools districts that hold local-only elections that have a “significant decrease in voter turnout” for their local-only elections to switch to concurrent elections. SB 415 set such a “significant decrease” as an average of 25% fewer voters in local-only elections as compared to the average voters over the previous 4 statewide general elections. The City of Pasadena and PUSD have such a “significant decrease” in their local-only election voter turn-outs; if SB 415 applies to charter cities, the City and PUSD would, by January 1, 2018, have to have a plan to switch to concurrent elections and would have to effectuate the switch by November 8, 2022 if the law applies to them.

The potential barrier to SB 415 applying to Pasadena and PUSD – charter city’s constitutional rights to home rule

Many California cities and school districts are “general law” entities, but a minority, including the City of Pasadena and PUSD are “charter” entities because both are established by the charter of the City of Pasadena. The California Constitution Article XI, §5a, gives charter cities the right to legislate “in respect to municipal affairs” over inconsistent state law. Article XI, §5b, provides for charter cities that their charters give them “plenary authority … to provide therein … the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed…” The California Constitution Article IX, §16(a) establishes that a city charter may regulate school board elections. These constitutional provisions providing charter entities greater rights than general law entities are commonly referred to as “home rule” rights.

As early as 1899, the California Supreme Court upheld in a case concerning the City of Salinas that charter city regulation of local elections preempted State general laws, and in 1910 reaffirmed in a case involving the charter city San Francisco “[t]he election of municipal officers is strictly a municipal affair goes without question.” After those two cases, a host of Court of Appeal cases held that charter city and school district regulation of local elections preempted general State laws that conflicted with them. In 2002, the Supreme Court returned to a State vs. charter city conflict involving the City of Los Angeles election procedures that provided for public funding of municipal elections despite a statewide initiative prohibiting such public funding whose proponents claimed it was designed to insure “the integrity of the election process.” By then, the Supreme Court had decided that general State legislation could preempt charter’s home rule regulation in other home rule areas if there was “a convincing basis” for the legislation based on non-local justification rather than just an “abstract State interest.” The Supreme Court held that the “integrity of the election process” at the municipal level – meaning transparency through campaign financial disclosure – was a statewide concern but upheld Los Angeles’ campaign financing law because the statewide initiative prohibiting public funding of elections had no reasonable relationship protecting the integrity of elections.

Thus, whether SB 415 preempts the Pasadena/PUSD timing of elections at a time that is local-only depends on determining whether there is a “convincing” state interest rooted outside local Pasadena interests rather than just an “abstract State interest.”

SB 415′s asserted State interests:
(1) Prohibiting intentional low turnout,
(2) Lowering municipal election costs, and
(3) Increasing local election voter turnout

At the hearing on SB 415, its author, San Diego Democratic Assemblyman Ben Hueso, sold it as giving “voter’s the right to challenge local government for holding elections on dates that result in a significant decrease in voter turnout” and targeting “people that are intentionally having off year elections to reduce voter turnout.” The hearings cited no evidence nor examples of any intentional use of off-year elections to reduce voter turnout, nor any evidence that voters were being denied their right to participate in local-only elections. That rationale and SB 415′s title are window-dressing. It this were the only rationale for SB 415, the legislation would not preempt Pasadena’s charter because it protects no demonstrable interest.

Assemblyman Hueso also asserted at the hearing that forcing cities and school districts to shift to concurrent election was likely to generate cost savings. Local agencies’ cost savings from concurrent elections come from economies of scale by having the cost of elections shared with non-local agencies – savings that sometimes reduce the elections bill by half. But in the Los Angeles public financing case referred to above, the Supreme Court rejected such a rationale by citing with approval the Court of Appeals’ observation that “..we can think of nothing that is of greater municipal concern than how a city’s tax dollars will be spent; nor anything which could be of less interest to taxpayers of other jurisdictions.”

Finally, Assemblyman Hueso and SB 415′s supporters such as California Common Cause cited that it was likely to increase voter participation in local elections. The 2002 Hajinal, Lewis, and Louch “Municipal Elections in California: Turnout, Timing and Competition” concluded that “[t]he turnout boost for cities holding concurrent elections was 11 to 23 percent among all adults and 21 to 36 percent among registered voter (depending on whether the concurrent election was presidential, gubernatorial, or a statewide primary).” No evidence was presented – nor any argument made – that concurrent elections increase turnout in State and federal election contest. While the asserted benefit of increased turnout in local races has empirical support, that doesn’t establish that it is a convincing State interest that is based on non-local considerations. If the empirical evidence showed that turnout increased in State and federal elections through concurrent elections, there might be a case for a convincing rather than abstract State interest. But because SB 415′s justification has been based solely on increased local election turnout, it warrants the same response: We can think of nothing that is of greater municipal concern than the timing of elections are made; nor anything which could be of less interest to voters of other jurisdictions.

The Attorney General Office’s shaky legal analysis supporting state preemption

On July 11, the California Office of the Attorney General issued a legal opinion concluding that “[t]he California Voter Participation Rights Act [SB 415] applies to charter cities, and to local school districts.” The AG’s Opinion primarily anchored its analysis on a case that seems to us unsupportive of his conclusion – i.e., the recent Court of Appeal case holding that Palmdale, a charter City, violated the California Voters Rights Act of 2001 (“CVRA”) by having district elections which diluted minority votes. Palmdale unsuccessfully argued that its district election method was protected against invalidation by its constitutional home rule protection for its manner of holding local elections. The AG’s Opinion analogizes the low vote turnout problem addressed by SB 415 with the dilution of minority votes problem addressed by the CVRA. But dilution of minority voting power by at-large elections is a violation of the equal protection clause of the State Constitution, an indisputable State interest. There is no comparable constitutional issue with low voter turnout in local elections. As noted above, the Supreme Court in the Los Angeles public funding of local elections case determined that local election “integrity” – i.e., transparency about who is financing election campaigns – was a constitutionally protected state interest. The AG’s Opinion makes an unconvincing argument that low turnout involves election integrity, but there is no support for that argument in California law.

Litigation is an inherently uncertain process defying predictive certainty; we’ve won cases we thought were slam-dunk losers and won cases we thought were slam dunk winners. But our opinion is that California courts would probably reject a legal attack on Pasadena asserting its constitutional home-rule rights by sticking with its local-only elections.

The path of inaction is better than caving in to a flawed AG Opinion

Although there can be honest differences between people of good will on concurrent elections vs. local-only elections, we’ve seen little appetite for concurrent elections in Pasadena. The City has a robust public dialogue on local issues and vigorous campaigns that we believe should not be sacrificed on the alter of higher turnout. We do hear fatalism about concurrent elections being forced upon Pasadena by the AG’s Opinion. Some have been led to believe that the City has no choice but to accept concurrent elections through putting on the ballot a proposition to move to concurrent elections. There is a better choice – do nothing and dare anyone to sue the City. We’ll be there to fight that lawsuit if it comes to that.

 

Skip Hickambottom and Dale Gronemeier are local civil rights attorneys.

 

 

 

 

 

 

 

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