Having written ballot measures and litigated their legality, I was surprised to read a key provision of the San Francisco Waterfront Height Initiative that seems to directly conflict with city law. If a legal challenge were filed, it could well be removed from the ballot.
Controlling Future Ballot Questions
The initiative states, “Any ballot measure placed before the electors to approve increased height limits for development on the waterfront must specify both the existing and proposed height limits in the ballot question. The failure to specify both the existing and proposed height limits in the ballot question shall render such an increase in height limits void.”
The proponents included this provision to control future ballot questions for any initiative seeking voter approval for higher waterfront height limits. While clearly directed at the planned Warriors arena measure in November, it would also impact the Giants development plans and those for Pier 70.
But the provision granting the proponent of one ballot measure veto power over ballot questions for future initiatives has a major problem: it usurps Municipal Code and charter functions of the City Attorney and Ballot Simplification Committee, and conflicts with city law.
In his illuminating August 11, 2011 exchange with Public Defender Jeff Adachi, Matt Dorsey of the City Attorney’s office carefully set forth the rules and procedures for ballot measures
. Dorsey stated that summaries of ballot measures in San Francisco are prepared by the Ballot Simplification Committee, in accordance with the San Francisco Municipal Elections Code:
The Ballot Simplification Committee is an independent body comprised of five members -- 2 appointed by the Mayor, and 3 appointed by the Board of Supervisors -- who are nominated by the League of Women Voters and organizations representing journalists and educators. The City Attorney has no vote on the Ballot Simplification Committee. Although a deputy city attorney serves as an ex officio committee member, the City Attorney’s office has no vote.
Dorsey cites the benefits of having a Ballot Simplification Committee: “The Ballot Simplification Committee conducts a public hearing process, benefiting from extensive input by City residents and other interested parties, and transparent deliberation among committee members.”
By its plain language, the Waterfront Heights Initiative usurps the legal function of the Ballot Simplification Committee and City Attorney’s office for preparing ballot questions.
Dorsey also states:
“The City Attorney's Office drafts only: (1) the title and summary for petitions, which is what prospective signers see; and (2) the ballot question itself -- both of which rely on language, whenever possible, chosen through the Ballot Simplification Committee's public process…The City Attorney usually adopt Ballot Simplification Committee usage because the Ballot Simplification Committee has had the benefit of extensive public input and citizen participation, and because the committee's legal mandate requires the use of simple language understandable to all voters.”
The Waterfront Heights Initiative disposes of this “extensive public input and citizen participation.” Instead, it mandates the use of specific language that hijacks the entire process.
Regardless of what you think of the merits of the initiative, allowing wealthy initiative backers to supplant the elected City Attorney, the appointed Ballot Simplification Committee, and the entire public process surrounding the development of ballot questions is very bad policy.
It also directly conflicts with city law.
Here is how City Attorney representative Dorsey put it:
I trust that no responsible City official or officer of the Court would ever willfully misrepresent the important right of every San Francisco citizen to take part in a process by which ballot materials are prepared for the consideration of fellow voters. It would be gravely unfortunate if San Franciscans -- reasonably believing such falsehoods -- concluded that they have no voice in the process, which in truth invites civic engagement, and benefits enormously from it.
The waterfront measure entirely eliminates this public process.
Preventing Future Ballot Measures
If you believe that the initiative process can bring progressive change, and anyone familiar with my book, The Activist’s Handbook
, knows I do, you should be very concerned with the text of the Waterfront Height initiative. By mandating that “any ballot measure” that fails to “specify both the existing and proposed height limits in the ballot question” is “void,” the initiative invalidates future ballot measures solely for reasons beyond their proponents’ control.
Think about it. Assume the Waterfront Heights measure passes in June. The Warriors then place a measure on the November 2014 ballot to comply with its terms by getting voter approval for raising height limits for their arena. They gather five times the signatures required to qualify the measure, and win at the polls with 80% of the vote.
Does voter support for the arena mean it gets built? No. If the ballot question language did not meet the Waterfront initiative mandate, the election outcome is "void."
Under this mandate, no election result affecting future waterfront development is valid unless the Ballot Simplification Committee and City Attorney’s Office adopts the specific ballot question language mandated by the Waterfront initiative.
A Warriors arena measure, for example, is void regardless of the number of signatures collected to put it on the ballot, and is void regardless of its victory margin at the polls.
The same rule applies to the Giants planned project adjacent to their stadium. Unless the City Attorney and Ballot Simplification Committee use the ballot question required for the Giants measure, the team can never build on their site.
Does it make any sense that future Warriors or Giants measures are preemptively voided for not using specific text in a ballot question its proponents have no control over drafting?
Let me answer that question by playing out the nonsensical scenario that proponents of the waterfront measure could be asking a court to uphold.
Everyone expects the Warriors to gather signatures for a November 2014 measure to raise height limits for their arena. So if the Waterfront initiative passes and its specific provisions are given effect, the Warriors would turn in their signatures to the city and then participate in the Ballot Simplification Committee process.
If the Committee and City Attorney do not adopt the Waterfront measure's mandated ballot question, the Warriors have a choice. Drop the campaign, because their initiative is automatically void due to the ballot question problem. Or proceed, and hope a court throws out the Waterfront measure's ballot question provision after the election.
Is this how our system of initiatives should operate? Where the proponent of one initiative can forever ban future initiatives on the same topic by mandating ballot question language that future initiative drafters cannot control?
Considering San Francisco law grants powers to the City Attorney and Ballot Simplification Committee to draft ballot questions, its clear the city did not intend to vest initiative proponents with such power.
Implementing the waterfront provisions for future ballot questions does not merely require the Warriors, Giants and others to get voter approval for projects. Rather, it prevents such projects from either going to the voters, or from having their election victories certified.
A measure promoted as a strategy to ensure voter approval for projects exceeding waterfront height limits---a cause nearly everyone supports-- actually is something quite different. It is a measure designed to prevent voters from approving greater height limits, ignoring city laws in order to deny public and voter input over the waterfront’s future.
Are Illegal Provisions Severable?
The provisions of the Waterfront Initiative are severable, so a court’s striking down the ballot question language does not necessarily void the initiative.
Tenant activists had a terrible experience with this issue in 2004, when a pro-landlord Judge removed an anti-demolition initiative (created before we reached an agreement on the rebuild of Trinity Plaza) from the November ballot because it failed to include a provision requiring that petition signers be told that their names could not be used for other purposes. This provision was only part of state law for two years, the signers names were never used for any other purpose, and the provision had nothing to do with the substance of the measure so was easily severable.
Under that Judge (Warren, since retired)’s reasoning, the legal defect in the Waterfront initiative would clearly require its removal from the ballot. But no case challenging the dubious ballot question provision has been filed.
We will see if that changes before or after the election.
Randy Shaw is Editor of Beyond Chron