Why flood vote must be defended

Staff Report
Marin Independent Journal
Article Launched:08/11/2007 11:10:28 PM PDT

HAL BROWN did the right thing Tuesday.

The county supervisor said the result of the Ross Valley flood control election should stand, despite calls for a new election and threats of lawsuits.

His colleagues agreed. The next step is for opponents to challenge the election in the courts, which certainly is their right. It would have been wrong for supervisors to invalidate this election simply because it is controversial.

The flood fee, which will raise $40 million over 20 years and cost property owners an average of $125 the first year, was approved by 65 votes out of the more than 8,000 cast.

There is no question about the narrow margin of victory. Unfortunately, 21 percent of the mail-in ballots returned to the county by June 25 were disqualified because they were not signed. If those unsigned ballots had been counted, the fee would have failed by 147 votes, according to an unofficial count paid for by attorney Ford Greene.

That information has muddied the waters and angered many residents, both inside and outside the Ross Valley.

Many have said the ballot was confusing, which is why so many were returned unsigned. The ballot said that unsigned ballots would be disqualified.

Others are unhappy that the election was deemed a "fee," not a tax, and conducted under the provisions of Proposition 218, which means it needed 50.1 percent to pass - not two-thirds.

Those are legitimate concerns, and this election certainly had its flaws, but none was grave enough to tell the more than 6,000 property owners who took the time to vote and vote correctly that their votes don't count.

THE BALLOT clearly stated that it had to be signed and dated to be valid. There was a clearly marked place for voters to print their name and sign and date the ballot - right under where they marked "yes" or "no." No one knows why nearly 1,700 ballots were returned out of 15,010 that were sent out without a signature.

There also is no question that a 21 percent disqualification rate is far too high. The county needs to determine why the rate was so high - twice as high as similar mail-in elections conducted in California - and make sure it doesn't happen again. The election should have been conducted by the Registrar of Voters, not a consultant hired by the county Public Works Department, even though that process is permitted under law. The Marin Election Advisory Committee is looking into how the voting was conducted. The Marin civil grand jury should do the same thing. Close scrutiny is needed.

Proposition 218 allows fees to be assessed upon property owners with a simple majority. The proposition closed a loophole in Proposition 13, the landmark tax measure passed nearly 30 years ago. Proposition 218 was orchestrated by the Jarvis-Gann movement, the force behind Proposition 13. Prop. 218 prevented local governments from imposing assessments without a vote.

The Ross Valley flood fee - or tax, as many prefer to call it - meets the criteria of Proposition 218. That didn't mean the county had to run the election under Proposition 218. It could have been called a property tax and all registered voters could have voted. It would have needed two-thirds to be approved.

IN HINDSIGHT, that might have been the better choice. Much of the furor surrounding the election has stemmed from the fact residents - many whom feel strongly about Proposition 13 - are convinced the flood election was designed to circumvent the two-thirds approval threshold. They accuse Brown and the county of trying to pull a fast one. Perception often becomes reality.

The process had its flaws, but to invalidate the results of this election simply because voters failed to follow the rules - whether intentionally or because they did not read their ballot carefully - would have been a mistake.

Ford Greene says his lawsuit "will argue that the county failed to provide instructions warning voters that failing to sign their ballot would invalidate their vote."

Greene is wrong.

We reprinted both sides of the ballot on the Opinion Page on Saturday in its actual size. There is no question that it states that ballots must be signed to be counted. He can argue that the instructions could have been in bigger and bolder type. He can argue that they should have been repeated on the envelope to remind voters. He can argue that they should have been on the same side of the ballot as the signature. But he is wrong when he claims voters weren't instructed to do so.

There are many lessons to be learned from this election.

But Marin County supervisors were right to obey and respect the will of the voters who followed the rules and cast their ballots correctly. The time has come to move forward and let the courts decide.