Dowling denies halting elections to reprint ballots
October 6, 2014
Nevada County Superior Court Judge Sean Dowling denied a petition late Friday from Measure S backers to stop distribution of ballots for the Nov. 4 elections, saying it was too late to have them reprinted without significantly disrupting the election process.
"Ballots have already gone out and some have been voted and returned," Dowling said, referring to 330 overseas and military ballots sent out before Sept. 20. "Destroying returned ballots and replacing them with new ones is a high-risk proposition that would require overseas voters to be notified of the problem and invited to re-vote."
At the same time, Dowling said the Measure S ballot label, the wording that voters see before they cast their ballot, "missed the mark" because it was not impartial as required by law.
He said case law, specifically McDonough v. Superior Court (City of San Jose), would have supported reprinting the ballots, but that the McDonough ruling was issued two months in advance of the elections, not one month as in the current case.
“Destroying returned ballots and replacing them with new ones is a high-risk proposition that would require overseas voters to be notified of the problem and invited to re-vote.”
Nevada County Superior Court Judge Sean Dowling
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Dowling's decision means that 41,942 vote-by-mail ballots will be sent out as scheduled starting Tuesday, along with 59,978 voter information pamphlets and sample ballots, according to Sandy Sjoberg, assistant recorder-registrar in the Nevada County Elections Office. Early voting will be available starting Monday.
"Obviously, we're very relieved and we appreciate the judge's recognition that this last-minute petition would have substantially interfered with our election process," County Counsel Alison Barratt-Green said. "We disagree with the judge's ruling regarding the (wording in the) ballot question."
The label's wording "meets the legal standard of not being false, fraudulent or misleading," she said. "It accurately reflects what the voters are being asked to do in November."
Dowling said it was also supposed to be impartial.
"The care and impartiality that county counsel put into (the label) appears lacking," he wrote in the ruling.
Measure S attorney Stephen Munkelt said he was disappointed that Dowling didn't offer him the chance to present evidence that the ballots could be reprinted and redistributed in a timely manner so as not to disrupt the election. Munkelt had asked the court to grant a restraining order to prevent any ballots from going out until the changes were made.
"We could have presented testimony on the remedies available," said Munkelt, who had offered at Friday morning's hearing to bring evidence to court either late Friday or on Monday. "What this does is, it has to re-energize the supporters of Measure S to make sure the word gets out about the real significance of Measure S."
At the hearing Friday morning, Munkelt told Dowling that reprinting and restuffing the vote-by-mail ballots should take no more than a week or 10 days, still enough time to meet the election code deadlines. He said retaping and reinstalling the electronic audio for the disabled should take "less than a day."
As to the military and overseas issue, Munkelt suggested that revised ballots be sent out as soon as possible, with a correction.
"It's not ideal," he told Dowling at the hearing. "But it seems like the most practical way."
Although Dowling agreed that the language in the label was prejudicial, he said Measure S leader Patricia Smith had more than ample opportunity to seek a change early on. The county board of supervisors approved a resolution placing Measure S on the ballot on April 22.
Included in the resolution was the wording of the label — although Munkelt said it wasn't clearly identified as such.
He said Smith had no idea that it would appear on the ballot in that form until a researcher who saw a sample ballot online contacted her about it.
"If the petitioner (Smith) would have recognized it, she would have raised the issue," Munkelt told Dowling at Friday's hearing.
"In part, the lack of solution is a problem of the petitioner's making," Dowling said in the ruling. "Petitioner did not challenge (the supervisors') resolution and waited to the 11th hour to file this challenge."
Dowling had equal chiding, however, for Barratt-Green's wording on the label.
"Language is not impartial if it suggests or signals the county's view on how the vote should proceed," he wrote in the ruling. "The use of the word 'expand' when related to marijuana cultivation represents a red flag to voters, yet the ordinance does not per se expand cultivation.
"Rather, it repeals the existing square footage-based system, replacing it with a combined numerical plant system (outdoors) and square footage-based system (indoors)," Dowling said. "This may or may not result in increased cannabis production overall."
Dowling, citing the ruling in the McDonough case, said "a more accurate and neutral descriptor would be to 'modify' current marijuana cultivation ordinances."
Dowling also objected to the setback language which, he said, "also suggests less protection for voters and is not neutral." He said the more accurate language would have been "modifying setbacks to be consistent with state law."
As to the language regarding "elimination of nuisance remedies, restrictions and regulations," he said it was accurate.
The label now says:
"Shall medical marijuana cultivation in Nevada County be allowed to expand by amending the county's general code to (a) increase the allowed sizes of cultivation areas; (b) reduce or eliminate setback requirements between cultivation areas and adjacent residences and sensitive uses; and (c) eliminate various marijuana cultivation regulations and restrictions related to nuisance control? YES___NO____"
Munkelt contends the ballot label should have read:
"Shall the ordinance repealing county ordinance 2349 and enacting medical marijuana cultivation standards be adopted? YES_____NO______"
Sjoberg said the cost to the county to reprint the vote-by-mail ballots, sample ballots and voter information pamphlets would have been $160,000.
Earlier Friday, Nevada City attorney Heather Burke, leader of the newly formed Nevada County Merchants Coalition for Measure S, said the case was a symptom of a larger issue regarding the process for creating and enforcing the current county medical marijuana ordinance and the process for creating Measure S.
"We need to figure out how to get everybody on board to talk about what should be done (regarding marijuana cultivation)," she said, standing outside on the county courthouse steps. "Our county deserves a better conversation than what we've had so far."
Burke said her group will be focusing on fiscal and economic impacts of Measure S.
"Small businesses in Nevada County depend on the vibrancy of our local economy for their success," she said.
"Our purpose is to advocate for the small businesses in our county," Burke said in a news release earlier this week. "With that sole purpose in mind, we formally support Measure S as a conservative medical cannabis cultivation ordinance that strikes the proper balance between all interested parties in a manner that allows our businesses to continue to thrive."
For more information, see http://www.NevadaCounty YesonS.com or call 530-475-2014.
To contact Staff Writer Keri Brenner, email email@example.com or call 530-477-4239.
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