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Words can mean life or death for ballot measures, including a November one in Santa Ana

February 23, 2024

A Verity Scan device at the Orange County Registrar of Voters (Photo by Mark Rightmire, Orange County Register/SCNG)

Officials are notorious for sticking their thumbs on the scales as Election Day approaches. But how much is too much? It’s a question Santa Ana officials might do well to ponder.

We’re not talking Venezuelan manipulation of voting machines or fake ballots stuffed in suitcases or other fantastical flights of fancy here. We’re talking about the comparably mundane use of language, and how officials crafting ballot measures (and titles and summaries) can bless, or curse, an idea with words and words alone.

A rose is a …

Remember the Republican-backed attempt to repeal gas taxes in 2018?

Drivers hated the gas tax and registration fee hikes (which aimed to raise some $5 billion a year for much-needed infrastructure work), but officials loved them. Proposition 6 would have repealed them and, like all statewide ballot measures, it had to traverse officialdom before reaching the great unwashed masses at the ballot box. When the Attorney General’s office wrote the title and summary for the measure, it didn’t simply say “repeals recently enacted gas and diesel taxes and vehicle registration fees.” It said, “Eliminates Recently Enacted Road Repair and Transportation Funding by Repealing Revenues Dedicated for Those Purposes. Requires Any Measure to Enact Certain Vehicle Fuel Taxes and Vehicle Fees Be Submitted to and Approved by the Electorate.”

Huh? Prop. 6 failed.

And who can forget all those pension reform attempts?

Orange County Registrar of Voters staffer James Wight, right, reads names and numbers to Danyette Sayles, as they check the accuracy of scanned test ballots (Photo by Mark Rightmire, Orange County Register/SCNG)

As the cost of generous public worker retirements gobbled more and more of state and local budgets, reformers circulated some pretty logical plans to get future costs under control. These plans would not have impacted current public workers; only workers hired in the future. But you couldn’t tell that from the title and summary from the AG’s office.

“Reduces pension benefits for current and future public employees … including teachers, nurses, and peace officers ….”

TEACHERS, NURSES AND PEACE OFFICERS?! Reformers went ballistic, calling the language “provably false or grossly misleading” — but, well, here we are, sans pension reform.

Enter now the extremely interesting measure from the city of Santa Ana for the fall general election that raises all sorts of tremendous questions.

Who votes?

On Nov. 5, Santa Ana voters will decide if noncitizens will get to vote in city elections.

The measure says, “Shall the City of Santa Ana City Charter be amended to allow, by the November 2028 general municipal election, noncitizen City residents, including those who are taxpayers and parents, to vote in all City of Santa Ana municipal elections?”

Staff members of the Orange County Registrar of Voters scan test ballots on Feb. 9 as part of state-mandated logic and accuracy testing. (Photo by Mark Rightmire, Orange County Register/SCNG)

A conservative Orange County attorney threatens legal action over this — but not for the noncitizen voting part.

“‘Taxpayers and parents?’” said Laguna Niguel attorney James V. Lacy, one eyebrow raised.

Which is to say, just as no decent human being would claw pensions away from righteous teachers and nurses and peace officers, who’s going to deny righteous taxpayers and parents the right to weigh in on local governance?

Of course, Lacy points out, the measure would also allow non-taxpayers and non-parents — which is to say, just about exactly everyone of legal voting age — the right to vote on local governance. So the words do nothing except try to tip the scales in the measure’s favor.

“That language is jimmying with the ballot,” Lacy said. “It’s election interference.”

If “taxpayers and parents” isn’t dropped from the measure, Lacy — who served in the Reagan administration and has filed similar suits before — will ask an Orange County Superior Court judge to step in.

We asked the Santa Ana folks their thoughts. City spokesman Paul Eakins said the city attorney’s office will be providing an impartial analysis of the ballot measure at a later date, and referred us to the city clerk’s website for more election information at www.santa-ana.org/elections/.

No idle threat

Lacy has worked in this space before.

The Golden Gate Bridge and San Francisco skyline from the Marin Headlands above Sausalito are shown in 2015. (AP Photo/Eric Risberg, File)

A few years ago, voters in San Francisco amended the city’s charter to allow noncitizen parents and guardians of school-aged children to vote in school board elections. Lacy took the city to court, citing Article II, Section 2, of the California Constitution: “A United States Citizen 18 years of age and resident in this state may vote.”

The city violated the constitution by allowing non-U.S. citizens to vote, he argued. The court agreed.

But the city appealed, arguing that the state constitution doesn’t expressly say “only” U.S. citizens may vote and doesn’t prohibit expanding the electorate to noncitizens. You might recall that, once upon a time in America, women were denied the vote, as were Black Americans and “natives of China.”

It’s important that San Francisco is a “charter city” — operating under its own voter-approved set of rules and regulations — as opposed to a “general law city,” operating under the general laws of the state. The appeals court reversed the lower court and handed the city a victory.

City Hall (Courtesy City of Santa Ana)

“(W)e agree with the City that the plain language does not restrict the Legislature’s discretionary power to expand the electorate to noncitizens,” the appeals court said. “(I)t makes sense to confer on charter cities the authority to expand the electorate where, as here, the city’s voters determine that doing so would better serve local needs. Conversely, where a charter city’s electorate determines expanding the electorate would not serve its local needs, it need not do so.”

Down the road, Lacy fears Santa Ana’s measure would dilute the voting power of minority citizens, thus running afoul of the equal protection clause of the U.S. Constitution. Santa Ana is 77% Latino, 12% Asian, 9% White and 1% Black, according to the U.S. Census Bureau. The overwhelming majority of noncitizens are presumed to be Latino.

But that’s not the issue now. Santa Ana is a charter city, just like San Francisco. The state Supreme Court isn’t likely to have a very different take on the noncitizen voting question than the appeals court did.

It’s the language Lacy is concerned with at the moment. So consider this a public service announcement that might save Santa Ana “taxpayers and parents” — and everyone else — what they might wind up spending in legal fees. Those words don’t seem germane to the question at hand, and might be too darn expensive.

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