Tony Krvaric. Photo by David Rolland.
“The law requires a paper towel ad to be scrupulously honest, but allows political candidates to lie without reproach. What's wrong with this picture?”—Jef I. Richards
By the sound of her voice, San Diego County Registrar of Voters Deborah Seiler cringed when Spin Cycle read her a recent blaring headline from local Republican blogmeister Barry Jantz: “San Diego GOP Fends Off Legal Challenge to be Lone Advertiser in June Sample Ballot….”
“‘Advertiser' is a little strong. I wouldn't use that word,” Seiler winced—at least verbally. “But that's his choice. We've just used the term ‘insert.'”
Insert your opinion here, but a Superior Court ruling last week has reverberated throughout the county and even in political corridors up and down the state.
Yes, the San Diego GOP hierarchy is piling on itself, celebratory-style, after Superior Court Judge Jeffrey Barton refused to block the local party from including in the Republican version of the June 8 primary sample ballot a solicitation letter that also includes specific endorsements of various candidates and ballot measures.
“This is new for San Diego,” Seiler told Spin Cycle. “It may have been done years and years ago, but certainly not on my watch nor on any of my staff's watch.”
At issue is the interpretation of an obscure, 35-year-old section of the state's Elections Code that permits political parties to include in a primary-election sample ballot a “party contributor envelope or a one-page letter, in which both sides may be utilized.”
The statute says little about what can be included in the letter, only that it “shall not contain words critical of any other political party.”
Last week, Barton, after an hour-long hearing, ruled that the Elections Code section “did not indicate that the party could not solicit funds by describing its position on issues or candidates supported.”
The state Legislature could have imposed such content limitations, Barton added, but didn't. “Such a restriction is more properly within the province of the legislature,” he argued.
As it is, this “lack of explicitness” by the state Legislature suggests that “substantial electioneering would be proper for both parties provided it was less than one page, double sided.”
Tony Krvaric, chairman of the county's Republican Party, did his usual best to describe the GOP court victory in conspiratorial tones.
“Just a quick note to let you know that local union operatives recently tried to silence our party by preventing us from communicating with fellow Republicans through a solicitation insert in the Sample Ballot for the June election,” Krvaric wrote to party faithful after the ruling.
“This was a dirty trick by local union operatives—who are opposed to some of the initiatives we are supporting—to intimidate us,” Krvaric added. “It didn't work….”
Tom Kunde, who filed the lawsuit challenging the content of the two-page letter after Seiler posted it online for public review, is an organizer for the International Brotherhood of Electrical Workers Local 569. Like other labor groups, the union opposes Proposition G in Chula Vista, which would prohibit project labor agreements in public real-estate developments.
But that wasn't his motivation to sue. “I'm not surprised by the name-calling from the GOP,” he told Spin Cycle. “As an electrician, my ability to support my own family in San Diego County depended on making sure local construction projects put local people to work…. [F]or me, this wasn't about political parties. It was about protecting the integrity of the ballot for working families.”
Gregory Luke, a Los Angeles attorney representing Kunde, suggested that the short timetable to decide this issue—sample ballots went to the printers April 16—didn't help.
“With great respect to the Superior Court, I think it's very difficult not to understand that this is taxpayer-subsidized, partisan electoral speech,” Luke said.
Seiler noted that the local GOP will be billed for the estimated $23,000 cost to print the letter in four languages (local ballots are available in English, Spanish, Filipino and Vietnamese, she said) and that the addition of the page didn't increase the cost of postage.
“The judge said that there was no evidence of a subsidy because, as far as we're concerned, the party's paying all the direct costs,” Seiler explained.
Not so, Luke argued. “We taxpayers pay for these mailers to go out. The issue is whether there is a subsidy that is paid for by taxpayers for this speech, and that's unquestionably so,” he said. “Whether there's an actual marginal cost is simply not the issue. This is going out in 300,000 sample ballots!”
If the GOP were to send out the same letter in the form of, say, a slate mailer (as local Democratic Party Chairman Jess Durfee described it), the postal charges alone would at least quadruple the cost, based on bulk-mail rates commonly used in political campaigns.
“They have every right to endorse, but they can't do it on the public dime,” Luke argued. “That's what slate mailers are for.”
Durfee agreed. “If they had been charged postage, I'd have less concern. Even though the registrar of voters says, ‘Oh, it didn't add anything to the postage cost,' that's not the point. The government mails out lots of things, but they never mail partisan material and foot the tab for it.”
Sour grapes, Krvaric countered. “Face it, the local Dems blew it,” he wrote in an e-mail. “No amount of whining about this or that from Jess Durfee will make that fact go away.”
Responded Durfee: “It's amazing that the Republicans went to such measures to find a little loophole. Actually, if I had known about it, I would have called upon my [state] legislator to fix it. I think it's a highly inappropriate use of the sample ballot, and here they're patting themselves on the back.”
Meanwhile, up in Santa Clara County—home to Silicon Valley—GOP leaders, emboldened by the court decision here, were heading to court this week to challenge the county's decision to prohibit them from listing the names of endorsed candidates in a similar solicitation letter.
As in San Diego, the endorsements occurred in non-partisan races. Orry Korb, assistant county counsel in Santa Clara, said the Elections Code also prohibits candidates in non-partisan races from indicating in their ballot statements their political affiliations.
“Thus, it should not be allowed as part of that solicitation. We understand that a judge reached a different conclusion in San Diego,” Korb said. “But he's only one judge and that's not a precedent.”
At least one candidate who's endorsed in the GOP letter didn't seem burdened by the legal debate.
“I love it!” said Scott Barnett, who's challenging incumbent John de Beck for a seat on the San Diego Unified School District's Board of Education. “Free speech, baby! I mean, there's no better mail piece that you could have.”
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