What's at stake?
Fresno County election clerk, James Kus, 'first-come, first-serve' policy for ballot arguments has created a situation where a generic argument claiming election fraud has preempted a community coalition against Measure C.
The decision concerning which opposition argument against Measure C that will appear in the voter guide this fall will be decided on Sept. 14, following a scheduled court hearing on Sept. 13.
Fresno County Superior Court Judge Mark Cullers on Wednesday encouraged the major parties – the Libertarian party and the No-on-C coalition – to reach a consensus, saying that such a consensus would make his decision to potentially swap the Libertarian argument for the No-on-C coalition’s clear-cut.
Cullers added that he will work on an expedited time schedule so that his decision does not interfere with the ballot printing timeline.
“The decision may be very cryptic, but I’ll try to include as much detail as I can,” said Cullers, who worked on Operation Rezone, an FBI sting in the late 1990s that indicted wealthy Fresno developer John Bonadelle, at the court hearing.
The No on Measure C coalition is asking the Fresno County Superior Court to order James Kus, Fresno County election clerk, to place their own opposition argument in the voters guide for this fall’s election, instead of the one submitted by the Libertarian party.
As currently constructed, the voter guide that the coalition is fighting to change features an argument against Measure C that was submitted by two members of the California Libertarian party.
Cullers may order Kus’ to switch out the Libertarian with No-on-C’s argument if he determines the election clerk used an arbitrary, capricious, or unfair policy to make the selection.
This is exactly the claim of the No-on-C coalition.
“[Kus’] use of a first-in-time selection criteria is inherently procedurally unfair,” the petition states.
“If [Kus] did in fact follow a first-in-time rule, [he] is now penalizing the submitters of the Committee Argument without prior notice, and even though they are fully compliant with the Guidelines.”
Can a deal be reached?
Before the lawsuit was filed, the Libertarians planned to support the No-on-C coalition’s legal challenge to Kus.
But after the coalition’s full argument was submitted to the courts, the Libertarians withdrew their support, citing a section of the No-on-C petition that states the Libertarian’s argument isn’t as “circumspect” as the coalition’s.
“We disagree with this petition in terms of their stating that the registrar should make the selections based on content,” said Mimi Robson, the chair of the California Libertarian party. “We believe that’s viewpoint discrimination. That could go very badly for lots of people.”
Robson said the argument challenged the Libertarian party’s “core principles” about government interference in political speech.
“We didn’t see [the full argument] until it was actually filed with the court. And it was at that point that we really turned to an attorney,” she said.
The withdrawal of the Libertarian’s support for the petition may turn out to be critical in the outcome of the trial.
After the No-on-C coalition’s “unfriendly” argument, it is unclear whether the No on Measure C coalition can get back on good terms with Libertarians for a court settlement, which is the route that Cullers encouraged as the clearest way forward.
Robson, who rose to the rank of state chair of the party in 2018, has amassed the time and resources which allowed her to submit 61 ballot arguments across 12 California counties this year.
She told Fresnoland that she wants to establish relationships with other community organizations to make effective opposition campaigns across the state in the future, and she plans to expand her operation to all 58 California counties in 2024.
“I think we as a party need to be able to work and play well with others,” she said.
“And I’m particularly happy that in other instances (counties), this has happened.”
But with Fresno County’s Measure C, she said she was disappointed that Kus’ first-come, first-serve policy did not allow her to manage that coordination.
“We now have new coalitions that are like-minded to us in terms of defeating these tax measures, and I would have liked to have seen that play out with this [No-on-C] coalition as well.”
But the Libertarians are changing their tone about collaboration going forward. While Robson stressed on Wednesday afternoon the strategic advantage of collaboration, by evening, she said her party had no intention of trying to broker a deal with the No-on-C coalition.
“We are not going to be withdrawing our opposition to the petition,” Robson said in an email to Fresnoland Wednesday evening. “If we were to do so, that would likely imply we are in agreement with their arguments.”
However, the No-on-C coalition remains hopeful that they can craft a settlement that respects the Libertarian’s first amendment commitments.
“We have no desire to establish some precedent that infringes on them,” said Juan Arambula, a former state assemblyman who is a member of the No-on-C coalition.
“Can’t we just resolve this peacefully?”
How did we get here?
This fall, Fresno County voters are faced with the choice to approve or reject Measure C’s $7 billion transportation spending plan, which was prepared by local political leaders, including Fresno mayor Jerry Dyer.
Citing internal polls that show that Fresno County voters want, first-and-foremost, their neighborhood streets improved, the plan’s proponents want to spend the majority of Measure C’s revenue over the next 30 years to repave local roads.
The plan’s major opponents, which include includes Nor Cal Carpenters Union and Carpenters Local 701; Juan Arambula, a former state assemblymember and Luisa Medina, a former Fresno city planning commissioner, say that the plan does not do enough to build new sidewalks, improve public transit, or fight climate change.
But unless Judge Cullers rules in favor of the No on C committee, when voters decide which side to support this fall, only one of these sides of the Measure C debate will be officially presented on the ballot.
This is because the Fresno county clerk chose to exclude the opposition’s arguments earlier this week, using an unprecedented process that his predecessors say has little legal merit.
Kus said he chose the Libertarian’s argument, instead of the opposition campaign because the Libertarians submitted their argument first. Kus told Fresnoland he made this decision without reading either of the arguments beforehand.
Kus said he did not want to consider the merit of the respective arguments or how cogent they were, or that the Libertarian’s argument already appears six other times on the ballot – considerations, he said, were outside of his discretion as election clerk.
Former Fresno County election clerks Susan Anderson and Victor Salazar disagree with Kus, saying he should have used his discretion to select the opposition ballot argument that is the most informative and useful to voters.
On Aug. 31, the Libertarians asked Kus if he could withdraw their opposition argument for Measure C, but Kus refused.
With no options left, the No-on-C coalition filed a petition Sept. 2 to reverse Kus’ decision, arguing that he should have selected the No-on-C coalition’s opposition position because they are the only officially registered opposition campaign for Measure C this fall.
According to multiple sources who spoke to Fresnoland, this line of reasoning created a rift between the No-on-C coalition and the Libertarians, which now threatens the possibility of a settlement between the groups as advised by Judge Cullers at the Wednesday morning hearing.
The groups have until next Tuesday to reach an agreement, before the scheduled court hearing. The trial will be held in Room 404 at the Fresno County Superior Court, September 14 at 1:30 pm.