City Council Meeting: March 27, 2001                                           Santa Monica, California



TO:                              Mayor and City Council


FROM:                        City Staff


SUBJECT:                 Introduction and first reading of an ordinance adding various sections clarifying the duties of the City Clerk and amending and adding various sections clarifying election procedures to the Santa Monica Municipal Code; and status report on regulation of campaign financing.



This report recommends that the City Council introduce for first reading an ordinance that adds various sections, and deletes one section of Chapter 2 of the Santa Monica Municipal Code (AMunicipal Code@) clarifying the duties of the City Clerk/Director of Records and Election Services.  The ordinance also amends Chapter 11 of the Municipal Code clarifying election procedures relative to submission of arguments and rebuttals for City measures, ballot designations, deadlines and signature requirements for filing of elections documents, waiving fees for filing petitions, nomination deadlines,  dissemination of election information, and public review of election documents.  In addition, this staff report provides a status report regarding regulations of campaign financing and recommends the City Council direct staff to evaluate any changes to the existing ordinance that Council may deem appropriate.



During the last municipal election several issues arose that ranged from questions regarding the authority and discretion of the City Clerk as the AElections Official,@ to differences of opinion regarding the legal interpretation of various sections of the California State Elections Code (AElections Code@).  Two of these issues resulted in lawsuits against the Elections Official and the City.  The case of Jerry Rubin v. the City of Santa Monica dealt with the issue of ballot designations.  The second case, Douglas Heller v. City of Santa Monica, involved an interpretation of the Elections Code=s section dealing with arguments and rebuttals for City measures.  The attached ordinance was prepared in order to resolve some of the questions that arose in these lawsuits, to prevent future litigation on similar issues, and to clarify certain election procedures.



2.12.270         City Clerk Title and Responsibilities

The California Elections Code defines, in part, the terms ACity Clerk@ and AElections Official@ as an officer or board charged with the duty of conducting any election.  The City of Santa Monica=s job description for the City Clerk/Director of Records and Election Services, as approved by the Personnel Board, includes as part of the duties of the position the administration of municipal elections.  However, neither the City Charter nor the Municipal Code specify the administration of elections as a duty of the City Clerk.  The addition of Section 2.12.270 will codify the City=s current practice of assigning the duty to administer municipal elections to the City Clerk.



2.32.040         Attesting by Clerk

This existing section of the Municipal Code assigns the City Clerk the duty of attesting to all City contracts executed by the City Manager.  This section is being repealed because the duty of attesting to contracts is included in the new section 2.12.270.


11.04.005      City Clerk Duties

Chapter 11 of the Municipal Code deals entirely with election procedures.  This section  is being added to clarify that when the City consolidates its Municipal Election with the County of Los Angeles, the City Clerk, in addition to administering the election, is charged with the coordination of the consolidated election and acts as the filing officer for the Political Reform Act.


11.04.010      Nomination of candidates

The above section of the Municipal Code sets the deadline for filing of nomination papers as 5:00 p.m., on the 88th day before an election, or 5:00 p.m., on the 83rd day before an election if an incumbent does not file by the 88th day deadline.  This section is being amended to change the deadline to the close of business instead of 5:00 p.m., to conform to the current hours of business in the City and avoid confusion for potential candidates and members of the public.




11.04.121      Ballot Designations

A candidate for a Council seat in the November 2000 election requested that his ballot designation be listed as APeace Activist.@  The Elections Official, following the provisions of Elections Code Section 13107 (ballot designation requirements), and the Secretary of State=s Ballot Designation Regulations (ARegulations@), denied the candidate=s request.  The candidate was invited to provide an alternate designation, but he declined to do so.


Questions regarding certain ballot designations arise at every election.  Requests to use AActivist@ as a ballot designation, either by itself or with a modifier in front of the term (such as Apeace@ or Aenvironmental@) have been made by different candidates, at different elections.    These requests have been routinely denied.  The candidates have been asked for an alternate ballot designation, which he or she has provided and the issue has been resolved to the apparent satisfaction of the candidate.  In this instance, however, the candidate opted to challenge the denial in court.


There are four categories in the Elections Code for selecting ballot designations.  The candidate qualified under the third category listed in Section 13107(a) of the Code, which defines a ballot designation in part, as follows: ANo more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination papers.@

In the State=s Ballot Designation Regulations, Section 20716 defines unacceptable ballot designations.  Subsection 20716(b) of the Regulations states: AThe following types of activities are distinguished from professions, vocations and occupations and are not acceptable as ballot designations pursuant to Elections Code Section 13107, subdivision (a)(3):@ A following subsection then lists Avocations, Pro Forma Professions (Vocations and Occupations) and Statuses as unacceptable.  Part (3) of Subsection 20716(b) above, defines statuses as follows: AStatuses: A status is a state, condition, social position or legal relation of the candidate to another person, persons or the community as a whole.  A status is generic in nature and generally fails to identify with any particular specificity the manner by which the candidate earns his or her livelihood or spends the substantial majority of his or her time.  Examples of a status include, but are not limited to, philanthropist, activist, patriot, taxpayer, concerned citizen, husband, wife, and the like.@


Subsequently, in the case of Jerry Rubin v. City of Santa Monica, the candidate challenged that the Elections Official was not legally mandated to follow the Secretary of State Ballot Designation Regulations and therefore had no basis for denying the use of the designation of APeace Activist.@  Although the City prevailed in the case, staff is recommending that the Municipal Code be amended to codify the City=s current practice of following the Secretary of State=s Regulations.  This practice is in line with the practice of other comparable cities.  The new section will require the City Clerk, as the Elections Official, to use the Regulations in determining whether to accept a proposed ballot designation in order to clarify the process and prevent future challenges or lawsuits.


This new section also provides for the use of a Aballot designation worksheet@ by each candidate.  The Secretary of State=s Regulations provide for optional use of this form.  Staff recommends mandatory use of the worksheet in order to have a uniform and equitable process, and to facilitate the review and approval of a proposed ballot designation by the City Clerk.  A sample of the worksheet is attached as Exhibit C.


11.04.125      Rebuttal Arguments

The case of Doug Heller v. City of Santa Monica was triggered by the decision of the Elections Official to not print a rebuttal to an argument in opposition of a measure in the voters= pamphlets because the rebuttal had been signed by a person other than either of the two authors who signed the argument in favor of the measure.  The decision of the Elections Official was based on the provisions of Elections Code Section 9285 - Rebuttal Arguments, which states in part: AThe persons filing the argument in favor of the city measure may prepare and submit a rebuttal argument not exceeding 250 words.@  The section does not provide for anyone else to submit a rebuttal argument other than the persons filing the argument in favor of the measure.  The lawsuit, among other things, challenged that the provision was ambiguous, and that Apersons filing the argument@ did not necessarily mean the authors of the argument but could mean the person physically filing the document in the City Clerk=s Office.  The Court agreed with the plaintiff that the Election Codes section was ambiguous.  Although the Court declined to clarify the language in the Elections Code, it found in favor of the plaintiff and directed the Elections Official to print the rebuttal in question.


The section being added to the Municipal Code clarifies that a rebuttal to an argument must be signed by at least one, but no more than the maximum number allowed of five  signatories to the opposing argument, and may not be signed by anyone who did not sign the original argument.


11.04.150      Distribution of information for candidates and committees

This section of the Municipal Code is being amended to correct an apparent previous inadvertent omission by inserting the phrase Athe City Clerk shall make available.@  It is also being amended to assure that proponents and opponents of a measure, as well as potential candidates for city offices, are aware of the applicable requirements of the City=s Municipal Code, and the Political Reform Act.


11.04.155      Election Filing Requirements

In order to achieve uniformity in filing deadlines for all election-related documents including nomination papers, the first part of this section establishes the close of business day as the deadline, instead of 5:00 p.m., as different sections of the Elections Code may require.


The second subsection requires all documents filed with the City Clerk to contain original signatures.  This action is being taken to comply with a change in State law that no longer allows faxed signatures to be accepted in lieu of originals on arguments and rebuttals, even though the original signatures are filed within 24 hours.


The last subsection provides an exemption to the original signature requirement for absentee applications only.  A voter may request an absentee ballot via a faxed application.  The voter however, still must have an original signature on the outside of the envelope containing his/her voted ballot in order for the ballot to be counted. 


11.04.171      Fees for Petitions

Elections Code Section 9202(b) provides for the legislative body to set a filing fee of up to $200 for any person filing a notice of intent to circulate a petition.  Although there is no record of any legislation waiving a filing fee, it is the collective memory of the City staff that the City has never required such a filing fee.  The addition of this section formalizes the established practice of not charging a filing fee.


11.040.090    Public Examination of Ballot Information

Elections Code Section 13313 requires that the Elections Official have a copy of the official voters= pamphlet available for public examination not less than 10 calendar days before submitting the document for printing.  It is difficult to have a complete and proofed pamphlet available for public inspection ten days before printing because of the amount of time that the Election Official needs to proof the document for content and accuracy due to the large quantity of information contained in the voters= pamphlet.  Compliance with this section may result in the delay of the timely printing of the pamphlet, which will then result in the untimely delivery of the pamphlets to the voters.  If this happens, the voters may not have sufficient time to review the information in the pamphlet to make an educated decision on their vote, especially if they are voting absentee because of travel plans, health reasons, or because they may be temporarily away from the City. 


The addition of this section will codify the current practice of making all the information that will be in the voters= pamphlet available for public inspection as the election documents are submitted.  For example, the first election documents that are available for public inspection are the candidate statements, and thereafter the candidates= names and ballot designations as they will appear on the ballot.  Regarding measures, the first information available to the public is the notice of intent to circulate with the proposed text of the measure.  After that, the question, as it is to appear on the ballot, becomes public once approved by Council.  Later, the arguments are submitted and then the rebuttals.  All this information is made available to the public well in advance of the 10 days before the printing deadline required in Section 13313 of the Elections Code.



Regulation of Campaign Financing

Case law remains unsettled and somewhat contradictory on the extent of the City=s power to regulate campaign financing without violating the First Amendment.  However, some generalities are possible.


Basically, laws governing campaign financing must leave open ample opportunities for expression and association.  They must also be narrowly drawn (to maximize free expression) and serve significant governmental interests.  Applying these basic requirements, the courts have usually struck down limits on campaign expenditures.


In contrast, contribution limits have generally fared better in the courts.  In particular, limits on direct contributions to candidates by both individuals and Political Action Committees (PACS) have often been upheld.  Such limits have been found to have minimal impact on expression and to serve the significant governmental interests of curtailing both actual corruption and the appearance of corruption.  To determine whether such a limit also fulfills the requirement of being narrowly tailored, the courts examine whether the dollar limit prevents candidates and committees from amassing the resources required for effective advocacy.  Results on this particular inquiry, which is factually based, are more disparate.  For instance, in a recent case which struck down Proposition 208's state office contribution limits, the court found that the limits would not permit candidates to run an effective campaign given the current cost of media and the large number of voters which state candidates must reach.  California Prolife Council Political Action Committee v. Scully, 989 F.Supp. 1282 (1998), aff=d 164 F.3d 1189 (1999).  (Proposition 208, a voter passed initiative, contained contribution limits of $100, $250 and $500, depending on the office and size of district.  These limits were increased to $250, $500 and $1,000 for candidates who agreed to specified expenditure limits.)  On the other hand, a recent United States Supreme Court case upheld the state of Missouri=s campaign limits ranging from $250 to $1,000, depending on specified state office or size of constituency, finding that the limits permitted state candidates to run an effective campaign.  Nixon v. Shrink Missouri Government PAC (2000) 120 S. Ct. 897.


There is a third category of contribution limits which has usually been invalidated by the courts: limits on contributions to PACS which make independent expenditures in support of various candidates and measures.   The United State Supreme Court has held that these types of contributions involve highly protected speech and are generally unconstitutional.  California Medical Assoc. v. Federal Election Commission, 101 S.Ct. 2712 (1981).  Recently, in an unpublished opinion, a federal court struck down San Francisco=s voter passed ordinance which placed limits on contributions to individuals, as well as to PACs.  Because this provision included PACs which made independent expenditures, the court found the ordinance was too broad.  San Franciscans for Sensible Government v. Renne, Case No. C 99-02456.



Based on these new case developments, the Council may want to narrow the existing City ordinance.


Fiscal Impact

The action recommended in this report will not have a direct fiscal impact.



Staff respectfully recommends that the City Council introduce and hold first reading of the proposed ordinance and provide direction for any other changes which the Council may wish staff to evaluate.


Prepared by:  Maria Stewart, City Clerk

Marsha Moutrie, City Attorney

Cara Silver, Deputy City Attorney


Attachments:  (A)  Ordinance

(B)  Secretary of State Ballot Designation Regulations (Not available electronically.              Available at City Clerk’s Office and public libraries.)

(C)  Ballot Designation Worksheet