A voter drops of his voted ballot in the ballot drop box outside the Fresno County Elections Office in downtown Fresno Tuesday, Nov. 8, 2016.

What's at stake?

In his first-come, first-serve decision, the implication is that anyone with a letterhead and multiple names signed at the top of their ballot argument can get on the county ballot before a major organized political group, like the Democratic or Republican party, so long as Kus receives their argument first. 

This fall, when voters pick up their ballot pamphlets to learn about Measure C, the most important sales tax in Fresno County’s history, they are going to find two arguments, one pro and one against.

The argument in favor is written by a well-known coalition that includes Fresno mayor Jerry Dyer, Fresno County Sheriff Margaret Mims and former county supervisor Henry R. Perea.

The argument against the measure, on the other hand, was written by two members of the California Libertarian party in colorful language that hints at vast conspiracies to steal elections. 

“How much election cheating are you willing to put up with?” the Libertarian ballot argument asks voters.  

“Are these public officials corrupt? All of them?…It’s almost like it’s a conspiracy.”

The county’s top election official, James Kus, said he chose the libertarian argument over an entry submitted by a community coalition that has been instrumental in opposing Measure C. 

He said he did not consider the merit of the respective arguments or how cogent they were written. He also didn’t factor in that the Libertarian’s had cut-and-pasted the exact same argument from six other ballot measures.

When it came to Measure C, Kus said he chose the Libertarians over the community coalition, which included a former state assembly member and a local union boss, because the former was speedier.

“I just said, ‘well, which one came in first?’” he said, adding that in the case of Measure C, he did not read the ballot arguments before deciding.

He added that if he had considered the merits of the arguments, it would have prejudiced his judgment. 

“If I had read the arguments, it would bias me,” he said. “I approached this to be as far from being biased as possible.”

Kus’ choice ‘defies any legal application’

Many elections experts who spoke with Fresnoland, including former Fresno County election clerks and an elections analyst, disagreed with Kus’ decision. 

Susan Anderson, Fresno County elections clerk from 1990 to 2000, said that Kus’ decision sets a “bad precedent.” 

“I don’t agree with the idea that you should take the first one that came in, if they all came in within the deadline,” said Anderson, who supports Measure C’s renewal this fall. “That’s not what the law says.”

She added, “if one of the arguments is not making an argument directly about the measure, that seems to me like that should be a consideration.”

Victor Salazar, who was Fresno county’s election clerk from 2001 to 2011, agrees with Anderson’s contention that Kus’s decision had thin legal basis. 

Salazar said Kus’ first-come, first-serve decision “defies any legal application, because that’s why we have deadlines.”

“It’s not who gets there first, whether it be in any form of legal action,” he added. “It’s always: you have a deadline, and then you weigh them on merit, not on who’s the first to get in the door.”

The elections expert Fresnoland talked to stressed the importance of Kus’ missed opportunity to take into consideration how relevant each potential ballot argument was.

“While it’s understandable that the elections office wants to appear as unbiased as possible, it also has an interest in providing the public with good and useful information,” said Jonathan Mehta Stein, executive director of California Common Cause, a non-profit that focuses on voting rights and government transparency in local elections. 

“If one of the arguments is already available multiple times elsewhere on the ballot, that suggests that the elections officer can use his discretion to provide something more useful and topical for voters on other measures,” he said.

Election Official says picking helpful ballot arguments not his concern

Kus said he was spurred on to make his choice due to an ambiguity in state election code 9166, which requires only one argument for and against each measure to appear on the ballot. 

The code does not provide any guidelines for the selection between two opposition groups except for the case where the board of supervisors are directly involved. 

So in the case of Measure C, he said he made his own one-time policy: first-come, first-serve.

This means that Fresno county voters may not get a chance to consider a “strong” opposition argument against Measure C when they pick up their voting booklets this fall. 

Instead, the counter argument for Measure C will include inflammatory claims about the widespread corruption of public officials. 

“How is it then, that all these public officials…have never (never means not once) put a local measure on the ballot that follows the law?” the Libertarian argument asks county voters about Measure C.

“Because the public officials (county supervisors) who start the ball rolling, violate every meaningful law with the knowledge, apparently, that all the other public officials will go along with their corruption.”

In an interview with Fresnoland, Kus said he does not have an obligation as an election official to use his discretion to provide specific, helpful and factual information in ballot arguments to Fresno County voters.

“That is just not something you want your government doing for you,Kus said.

In the future, he said he will randomly pick the argument to present to voters in the case of multiple ballot arguments being presented.

“We will put in procedures that will randomize that process,” Kus said.

But Kus’s one-time policy and his new solution present problems.

In his first-come, first-serve decision, the implication is that anyone with a letterhead and multiple names signed at the top of their ballot argument can get on the county ballot before a major organized political group, like the Democratic or Republican party, so long as Kus receives their argument first. 

And in Kus’ new proposed process, any group with a list of names can spam the county election clerk’s office with a litany of ballot arguments, stack the deck for the random process that decides which argument is selected, and thereby undemocratically dilute the power of an organized political group which would likely help lead the policy debate for a local measure.

Other counties in California have figured out how to resolve this situation. For example, Contra Costa County election code says that the election clerk may “include consideration of grammar, spelling, coherence, tone, and the comprehensiveness of the argument” to break ties between competing ballot arguments, according to documents given to Fresnoland.

Stein says a new policy, like Contra Costa County’s, needs to be put in place in Fresno County.

”I think that this office needs to have some sort of process like the Contra Costa approach,” he said, “but I’m really sympathetic to elections officials who in this moment want to appear as unbiased as they possibly can.”

Main Measure C opposition group claims they “can’t even get a word in” because of Kus

The other argument submitted against Measure C’s renewal this fall was written by a coalition called No-on-C that includes Nor Cal Carpenters Union and Carpenters Local 701, Juan Arambula, a former state assemblymember, Luisa Medina, a former Fresno city planning commissioner, Sandra Celedon, the CEO of Fresno Building Healthy Communities, and Youth Environmentally Savvy, a youth group.

Arambula said the coalition believes Kus “abused his discretion” when he decided to reject the group’s opposition statement. 

“Whether it’s global warming or air pollution, there are lots of things that are going to be impacted by this transportation measure. And we think that it’s only appropriate to give both sides of the argument,Arambula said.

Documents given to Fresnoland show that the coalition argued that the Measure C plan does not do enough to battle inflation or improve local job programs, public transit, or safe routes to schools. Recent reporting by Fresnoland shows that these points are long-standing criticisms raised by hundreds of community members about the multi-billion dollar spending plan over the last several months.

“We have the proponents trying to pass a nearly $7 billion tax proposal over a 30-year period, and we can’t even get a word in,” Arambula said. “You would think he (Kus) would read the ballot arguments instead of just trying to figure out what is least harmful to him.”

Despite the coalition’s multiple communications with Kus in the weeks before the Aug. 29 argument submission deadline, Arambula said Kus never informed the coalition about any potential complications stemming from the Libertarian’s opposition submission.

“He never said anything about ‘well, it’s too bad because another one came in first’,’” Arambula said.

Official timestamps from documents given to Fresnoland indicate that the ballot argument conflict existed for at least a week leading up to the Aug. 29 deadline.

But Arambula said the coalition was informed about the conflict only when it was too late to do anything about it.

‘We weren’t looking to preempt anybody’

After Kathryn McElroy party found out that the No-on-C coalition would not have their ballot argument appear this fall because the Libertarian party’s stock argument had taken precedence, she said Kus’ selection process was off.

“Our purpose in submitting arguments against all the ballot measures like we did was to make sure there was an argument against every measure,” McElroy said. 

“In all of the other cases [except for Measure C], there were no other arguments submitted against, so it was really important to us to make sure that there’s actually a debate going on for the voters to make their decisions.”

On Wednesday morning, the Libertarians asked Kus if they could withdraw their ballot argument, presumably to make way for the No-on-C coalition’s argument, but Kus declined, citing another election code.

“We’re on the same side as them (the coalition). They had a strong argument that they submitted,” said Kathryn McElroy, a member of the Fresno county Libertarian party. 

“We weren’t looking to preempt anybody. We just wanted to make sure there was at least one argument against [Measure C].”

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Gregory Weaver

Gregory Weaver is a staff writer for Fresnoland who covers the environment, air quality, and development.

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