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Home My WebLink AboutCorrespondence - Closed Session Item #1 Ibarra, Evelyn From:Julia Gomez <JGomez@aclusocal.org> Sent:Tuesday, June 18, 2024 1:26 PM To:eComment Cc:Amezcua, Valerie; Lopez, Jessie; Phan, Thai; Vazquez, Benjamin; Bacerra, Phil; Hernandez, Johnathan; Penaloza, David; Carvalho, Sonia R.; Annette Wong; Anisha Hingorani; Annie Lee Subject:Public Comment re June 18 Mtg, CS Item No. 1 and RS Item No. 17 Attachments:2024.06.18 CAA, UCI Law IRC + ACLU Ltr to Santa Ana re CS Item No. 1 and RS Item No. 17.pdf Attention: This email originated from outside of City of Santa Ana. Use caution when opening attachments or links. A?ached please ﬁnd public comment from Chinese for Aﬃrma?ve Ac?on, UCI Law Immigrant Rights Clinic, and the ACLU of Southern California regarding today’s Closed Session Item 1 and Regular Session Item 18 (immigrant vo?ng ballot measure). Best, Julia Gomez, Staff Attorney ACLU of Southern California 1313 W 8th Street, Suite 200 Los Angeles, CA 90017 (o) 213.977.5258 aclusocal.org || facebook || twitter || blog || app ACLU SoCal: STAND FOR JUSTICE >> Download our mobile app at mobilejusticeca.org THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. 1 Sent via email June 18, 2024 Santa Ana Mayor and City Council City Council Chamber 22 Civic Center Plaza Santa Ana, CA 92701 eComment@santa-ana.org Re: June 18, 2024 City Council Agenda, Closed Session Item No. 1 and Regular Session Item No. 17, Noncitizen Voting Ballot Measure Dear Mayor Amezcua and Members of the Santa Ana City Council: Chinese for Affirmative Action, the ACLU Foundation of Southern California, and the UC Irvine School of Law Immigrant Rights Clinic respectfully submit this letter about the City CouncilÓs planned discussions relating to potentially amending the language of the November 2024 immigrant voting measure (the ÐMeasureÑ). The City Council has broad discretion over ballot language and is under no obligation to take direction from James V. Lacy, an individual challenging the Measure in court. Mr. Lacy has a history of unsuccessfully opposing efforts to expand the vote to noncitizen residents, including through a failed lawsuit to set aside San FranciscoÓs immigrant voting program and a failed pre-election lawsuit to keep OaklandÓs 1 immigrant voting measure off the November 2022 ballot. Because the Measure is clear, informative, and is neither false, misleading, nor partial to one side, the City Council may send the current version of the Measure to county elections officials. I. The City Council has broad discretion to draft the Measure, and a court must employ a presumption that the measure in neutral. The City Council has broad discretion to prepare ballot language. Yes on 25, Citizens for an On-Time Budget v. Super. Ct. (ÐYes on 25Ñ), 189 Cal. App. 1445, 1452-53 (2010); Martinez v. Super. Ct., 142 Cal. App. 4th 1245, 1248 (2006). In contrast, courts do not enjoy a wide range of discretion when adjudicating pre-election challenges to the sufficiency of ballot language. Becerra v. Super. Ct., 19 Cal. App. 5th 967, 976 (2017) (citing Yes on 25, 189 Cal. App. 4th at 1453). Rather, although a court must independently assess whether ballot language substantially 1 Lacy v. City & Cnty. of San Francisco, 94 Cal. App. 5th 238, 243 (2023) (rejecting challenge to San FranciscoÓs immigrant voting program); Bob Egelko, Conservative Group Drops Challenge to S.F., Oakland Laws Allowing Noncitizen Voting in School Board Races, San Francisco Chronicle (Oct. 10, 2023), https://bit.ly/4cuGSTD. FYFDVUJWF!EJSFDUPS Ifdups!P/!Wjmmbhsb DIBJS Tubdz!Ipsui.Ofvcfsu!WJDF!DIBJS Spc!Ifoojh DIBJST!FNFSJUJ Njdifmf!HppexjoNbsmb!Tupof!!Tibsj!Mfjoxboe!!Tufqifo!Spief!!Ebooz!Hpmecfsh!!Bmmbo!L/!Kpobt+!!Cvsu!Mbodbtufs+!!Jswjoh! Mjdiufotufjo-!NE+!!Kbsm!Npio!!Mbvsjf!Ptuspx+!!Tubomfz!L/!Tifjocbvn+! !+efdfbtfe PSBOHF!DPVOUZ!PGGJDF!Θ!876!UIF!DJUZ!ESJWF-!TVJUF!471!Θ PSBOHF-!DB!:3979!Θ!U!825/561/4:73!Θ!G!825/694/9157!Θ!BDMVTPDBM/PSH! Santa Ana Mayor and City Council June 18, 2024 Page 2 complies with statutory standards, seeMartinez, 142 Cal. App. 4th at 1248, a court may grant relief Ðonly upon clear and convincing proof that the \[challenged\] materials in question \[are\] false, misleading, or inconsistent with the requirements of \[Section 9051\],Ñ Yes on 25, 189 Cal. App. 4th at 1453 (quoting Elec. Code § 9092), see also McDonough v. Super. Ct., 204 Cal. App. 4th 1169, 1173 (2012) (citing Elec. Code § 9295(b)(2)). Ballot language may be deemed insufficient only in a clear case, and Ðall legitimate presumptions should be indulged in favor of the propriety of the \[drafterÓs\] actions.Ñ Yes on 25, 189 Cal. App. 4th at 1453 (quoting Epperson 2 v. Jordan, 12 Cal. 2d 61, 66, 70 (1938)). Yes on 25 exemplifies the discretion courts afford to drafters. In Yes on 25, a court of appeal reversed the lower courtÓs ruling striking the following ballot language: CHANGES LEGISLATIVE VOTE REQUIREMENT TO PASS BUDGET AND BUDGETÎRELATED LEGISLATION FROM TWOÎTHIRDS TO A SIMPLE MAJORITY. RETAINS TWOÎTHIRDS VOTE REQUIREMENT FOR TAXES. INITIATIVE CONSTITUTIONAL AMENDMENT Id. at 1450-51. The petitioners alleged that the ÐRetains Two-Thirds Vote RequirementÑ was misleading because it suggested that passage of the proposition was necessary to keep in place the two-thirds vote requirement to raise taxes. Id. at 1448. The court acknowledged that Ðreasonable minds may differÑ as to the sufficiency of the language but concluded that a difference of opinion did not constitute Ðclear and convincing proofÑ that the challenged language was misleading. Id. at 1454. Because preparing ballot materials is a difficult task, drafters are Ðafforded considerable latitude.Ñ Id. at 1452-53. As in Yes on 25, at most there may be a difference of opinion between Mr. Lacy and the Council as to whether the Measure is partial or biased. But a difference of opinion is not enough to set aside the CouncilÓs language. II. The ballot question does not need to be the most neutral or complete question and it may list the effects of the measure by way of example. Despite the deference afforded to the City Council and the plainly neutral language included in the measure, Mr. Lacy alleges in his lawsuit that the language is biased because it is 3 incomplete. He alleges Ðparents and taxpayersÑ describes only some of the noncitizens who would be able to vote were the proposed measure passed and points out that noncitizens who are Ðhomeless or criminalsÑ would also be granted the right to vote. The test for whether ballot language is sufficient, however, is not whether the drafters could have used the most complete or neutral language. See Martinez, 142 Cal. App. 4th at 1248. Indeed, courts routinely reject challenges to ballot language that simply explains the effect of a measure. See, e.g., Green v. Logan, 2014 WL 2446069 at *1 (Cal. Ct. App. June 2, 2014) (rejecting argument that revenue-raising measure was biased simply because it included examples, but not an exhaustive list, of services that it would fund); Santa Clara Cnty. Bd. of 2 Whether a drafter supports or opposes a measure does not lessen the deference courts give to their actions. Lungren v. Super. Ct., 48 Cal. App. 4th 435, 440 n.1 (1996) (in discussing the discretion drafters have over ballot language, noting that it is immaterial whether drafters support or oppose the challenged ballot language); Martinez, 142 Cal. App. 4th at 1249 (Ðit is the ballot titleÓs language that must be impartial, not the claimed motives of the councilÑ). 3 Lacy, et al. v. Santa Ana City Council, et al., Case No. 30-2024-01402208, Pet. for Writ of Mandate (Cal. Super. Ct., Orange Cnty. May 24, 2024). BNFSJDBO!DJWJM!MJCFSUJFT!VOJPO!GPVOEBUJPO!PG!TPVUIFSO!DBMJGPSOJB! Santa Ana Mayor and City Council June 18, 2024 Page 3 Supervisors v. Super. Ct., 2004 WL 1945665 at *6 (Cal. Ct. App. Sept. 1, 2004) (concluding that ballot language stating that the charter amendment would ÐsupersedeÑ the dispute resolution process in the charter and ÐimposeÑ arbitration for union disputes was merely an accurate description of the measureÓs effect, and thus was not false, misleading, or argumentative). Instead, the test for the sufficiency of ballot language is Ðwhether it is partial (or false or misleading)Ñ and whether the language Ðsignals to voters the councilÓs view of how they should vote, or casts a favorable light on one side . . . while disparaging the opposing view.Ñ Martinez, 42 Cal. App. 4th at1248 (emphasis added). In Martinez, the petitioner unsuccessfully argued that the following ballot language was incomplete, misleading, and biased: COUNCIL MEMBER TERM LIMITS OF THREE TERMS; CITY LOBBYING, CAMPAIGN FINANCE AND ETHICS LAWS. CHARTER AMENDMENT AND ORDINANCE PROPOSITION __. Shall the Charter be amended and ordinance adopted to: change Councilmember term limits to three terms; restrict lobbyists from making campaign contributions, gifts and becoming commissioners; revise lobbyist registration thresholds; require contractors certify compliance with lobbying laws; extend elected officialsÓ post- employment restrictions; require ethics training; and revise requirements for independent expenditure and campaign contributions? 142 Cal. App. 4th at 1247. Although the court conceded that the heading of the measure could be more informative by stating that it would increase term limits from two to three terms, the court stressed that the language did Ðnot need to be the Òmost accurate,Ó Òmost comprehensive,Ó or ÒfairestÓ that a skilled wordsmith might imagine.Ñ Id. at 1248. The court ultimately rejected the challenge, emphasizing that the Ðjudiciary \[was\] not free to substitute its judgment given its deferential standard of review.Ñ Id. In the limited instances when courts have set aside biased language, the language was 4 also false or misleading and heavily favored one side. For example, in Huntington Beach City Council v. Superior Court, cited by Lacy, the Court of Appeal amended the following text because it included a term that disparaged the measure: ÐAmendment of Utility Tax by Removing Electric Power Plant Exemption.Ñ 94 Cal. App. 4th 1417, 1425, 1433-34 (2012). The Court reasoned that in the tax context ÐÒexemptionÓ carries the whiff of privilegeÑ by implying Ðunfair influence and special treatment.Ñ Id. at 1433-34. The court determined this language was also misleading because the energy company targeted by the measure did pay utility taxesÏjust not on wholesale natural gasÏ and thus the ballot titleÓs phrasing was inaccurate. Id. at 1434. The court therefore ordered the city to replace ÐexemptionÑ with Ðexclusion,Ñ a word that does not carry an overly positive or negative connotation in the taxation context. 4 LacyÓs brief only cited three cases to support its position. See, generally, Lacy, et al. v. Santa Ana City Council, et al., Case No. 30-2024-01402208, PetÓrsÓ Op. Br. (Cal. Super. Ct., Orange Cnty. June 4, 2024). One of those cases did not involve a challenge under the Elections Code at all. See id. at 11-13 (citing Citizens for Responsible GovtÓ v. City of Albany, 56 Cal. App. 4th 1199 (1997), a case at the motion to dismiss stage involving a post-election challenge to a gambling ballot measure where the Business and Professions Code, unlike the Elections Code, specifies the exact wording of the measure and the council deviated by adding superfluous language). The other two cases, discussed in this letter, involved clearly biased language that was also misleading. BNFSJDBO!DJWJM!MJCFSUJFT!VOJPO!GPVOEBUJPO!PG!TPVUIFSO!DBMJGPSOJB! Santa Ana Mayor and City Council June 18, 2024 Page 4 McDonough likewise involved language that clearly created an impermissible bias and was misleading. In McDonough, petitioners brought a pre-election challenge to a proposed amendment to the Santa Clara city charter, claiming the ballot question and the city clerkÓs analysis of the question were Ðmisleading and biased in favor of passage.Ñ 204 Cal. App. 4th at 1172. The ballot measure was titled ÐPension ReformÑ and contained the following language: To protect essential services, including neighborhood police patrols, fire stations, libraries, community centers, streets and parks, shall the Charter be amended to reform retirement benefits of City employees and retirees by: increasing employeesÓ contributions, establishing a voluntary reduced pension plan for current employees, establish pension cost and benefit limitations for new employees, modify disability retirement procedures, temporarily suspend retiree COLAs during emergencies, require voter approval for increases in future pension benefits? Id. at 1173 (emphasis added). The Court ordered the ballot title ÐPension ReformÑ to be amended to say ÐPension ModificationÑ because the word ÐreformÑ characterized the existing pension system as Ðdefective, wrong, or susceptible to abuse,Ñ and thus took a biased position. Id. at 1174-76. The court also ordered removed the italicized introductory language because the term ÐprotectÑ misled voters into believing that if the measure failed the public would lose the services. Id. at 1175-77. It was this implication that led the court to find the language Ðpartisan and prejudicial.Ñ Id. at 1176. There is no similar language in the Measure. Instead, the Measure uses the word ÐincludingÑ to indicate that taxpayers and parents are someÏbut not allÏof the noncitizen Santa Ana residents who would be impacted by the measure. The challenged language here also does not carry an overly positive connotation in the voting context, just as the terms ÐexclusionÑ in the tax context and ÐmodificationÑ the pension context are largely neutral. In contrast, the terms tax ÐexemptionÑ rejected by the Huntington Beach court and pension ÐreformÑ rejected by the McDonough court undoubtedly created bias. And, as noted, even if a court determined that the phrase Ðtaxpayers and parentsÑ carries positive undertones, California courts have emphasized that Ða ballot title need not be the . . . ÒfairestÓ that a skilled wordsmith might imagineÑ and that Ðthe judiciary is not free to substitute its judgment \[for a city councilÓs judgment\] given \[the\] deferential standard of review.Ñ Martinez, 142 Cal. App. 4th at 1248. * * * We urge the City Council to consider this information during its discussions about the ballot language. Thank you very much for your time and consideration. Sincerely, 5 Julia A. GomezAnisha Hingorani Annie Lai Senior Staff Attorney Policy Manager Director ACLU of Southern California Chinese for Affirmative Action UC Irvine School of Law Immigrant Rights Clinic 5 Grayson Rost, a legal intern at the ACLU of Southern California and student at the UCLA School of Law, provided research support for this letter. BNFSJDBO!DJWJM!MJCFSUJFT!VOJPO!GPVOEBUJPO!PG!TPVUIFSO!DBMJGPSOJB! Santa Ana Mayor and City Council June 18, 2024 Page 5 Cc: Valerie Amezcua, Mayor, vamezcua@santa-ana.org Jessie Lopez, Mayor Pro Tem, jessielopez@santa-ana.org Thai Viet Phan, Councilmember, tphan@santa-ana.org Benjamin Vazquez, Councilmember, bvazquez@santa-ana.org Phil Bacerra, Councilmember, pbacerra@santa-ana.org Jonathan Ryan Hernandez, Councilmember, jryanhernandez@santa-ana.org David Penaloza, Councilmember, dpenaloza@santa-ana.org Sonia R. Carvalho, City Attorney, scarvalho@santa-ana.org BNFSJDBO!DJWJM!MJCFSUJFT!VOJPO!GPVOEBUJPO!PG!TPVUIFSO!DBMJGPSOJB! Ibarra, Evelyn From:Carlos Perea <carlos@harborinstituteoc.org> Sent:Tuesday, June 18, 2024 3:01 PM To:Amezcua, Valerie; Phan, Thai; Vazquez, Benjamin; Bacerra, Phil; Penaloza, David; Lopez, Jessie; Hernandez, Johnathan; eComment; Carvalho, Sonia R. Cc:Mai Do; Tracy La Subject:Re: Closed Session Item #1, Regular Session Item #17 - Noncitizen Voting Ballot Measure Attachments:6_17_24 SACC Letter.pdf Attention: This email originated from outside of City of Santa Ana. Use caution when opening attachments or links. Dear Mayor Valerie Amezcua and Santa Ana City Council Members, Please see attached letter from Santa Ana Families for Fair Elections regarding noncitizen voting ballot language discussions for today. We urge the City Council to retain the original ballot measure language, defend it in court, and stand by its original decision to place this question on the November 2024 general election ballot for Santa Ana’s voters to consider. Sincerely, Harbor Institute for Immigrant & Economic Justice VietRISE Public Law Center Orange County Justice Fund El Centro Cultural de México Santa Ana Collaborative for Responsible Development (SACReD) Clergy & Laity United for Economic Justice Latino Health Access Esperanza Unión de Inquilinos To help protect your privacy, Microsoft Office prevented automatic download of this picture from the Internet. photo Carlos Perea He/Him Executive Director, Harbor Institute for Immigrant & Economic Justice carlos@harborinstituteoc.org www.harborinstituteoc.org 1 837 N Ross St, Santa Ana, CA 92701 To To To hehehe lp lp lp prprpr ototot ececec t t t yoyoyo ur ur ur To help protect your privacy, Microsoft Office prevented automatic download of this picture from the Internet. __tpx__ 2