Mark E. Cullers Credit: Govenors Office

What's at stake:

Tuesday’s ruling means that every voter guide this fall will feature the Libertarian argument against Measure C, which alleges widespread “election cheating” and corruption, instead of the submission from the No on Measure C coalition.

A superior court judge on Tuesday upheld a Fresno County election administration decision about Measure C, a proposed $7 billion transportation spending plan which needs to garner two-thirds of votes this fall.

In a 12-page opinion, finalized a mere hour after the court hearing, Superior Court Judge Mark Cullers ruled that Fresno County election clerk James Kus made a “reasonable” decision to select the opposition argument authored by the Libertarian party, instead of the submission by the official opposition coalition against Measure C.

Tuesday’s ruling means that every voter guide this fall will feature the Libertarian argument against Measure C, which alleges widespread “election cheating” and corruption, instead of the No on Measure C coalition’s, which contains long-standing criticisms about the massive spending plan, including that it does not do enough to battle inflation or improve local job programs, public transit, or safe routes to schools.

“How much election cheating are you willing to put up with?” Fresno county voters will read in the ballot guide multiple times this fall. “Are these public officials corrupt? All of them?…It’s almost like it’s a conspiracy.”

Judge Cullers stated in his opinion that Kus “need not have used the best possible method. All he was obligated to do was to use a reasonable method, and this court finds that he did.”

“[T]o avoid abusing [his] discretion, the elections official only needs to use a selection method that is not irrational. Whether that selection method is ‘wise’ or ‘expedient’ is immaterial to whether the standard is met,” Cullers said.

The county’s top election official, James Kus, says his department was pleased by the court’s decision.

“The Department is gratified the Court agreed that the Department followed the law when deciding on which arguments would be printed for Measure C and that no error, omission, or neglect occurred under the law,” he said in a statement to Fresnoland.

Kus said he chose the Libertarian argument over the main opposition coalition without considering the merit of the respective arguments or how cogent they were, adding that he didn’t factor in that the Libertarians had cut-and-pasted the same argument for six other ballot measures.

On Measure C, Kus said he chose the Libertarians over the community coalition because the former got to his office first.

“I just said, ‘well, which one came in first?’” Kus said to Fresnoland on Aug. 31.

Judge ignores key argument

Critics of Kus’ decision, including two previous Fresno County election clerks, say his first-come, first-served selection procedure was inappropriate because it punished the No on Measure C coalition without prior notice. 

One of the key details the coalition included in their court petition is that Kus abused his discretion.

Kus made his one-time policy after the ballot submission deadline, after he noticed that the California elections code did not give him guidance on which argument to print on the ballot. 

The No on Measure C coalition said that if they had known about the county’s decisive first-come, first-served policy, they would have submitted their argument “as soon as Kus opened up his doors.” 

In his ruling, Judge Cullers did not address this argument. Instead, the judge’s opinion focused on a different debate pertaining to why the court doesn’t have the authority to require Kus to subjectively select ballot arguments.

Juan Arambula, former state assemblyman who is a member of the No on Measure C coalition, said that “there was a lot of dancing going around” in Cullers’ decision.

“You can cut it as thin as you want, but it’s still baloney. It’s too bad the bad guys won today,” Arambula said. “The loser in the court decision was the voters, because effectively the voters of Fresno County are going to vote on a huge tax measure without having the benefit of the best arguments on both sides.”

A condensed version of the coalition’s rejected submission will appear as a “rebuttal” argument elsewhere in the voter guide.

Kus said his greatest concern in the choice he made was to be unbiased. Arambula, however, questioned Kus’ independence from the County Board of Supervisors. 

“If we look outside the courthouse, the Board of Supervisors funds every single one of the county departments, including the elections department,” Arambula said.

“So I have to ask myself, how is it neutral to choose the least effective argument against the measure that your bosses want?”

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