April 8, 2022
San Diego City Council
Sent via email to [email protected]
Dear Members of the San Diego City Council:
In the interest of protecting our democracy, Alliance San Diego urges you to honor the March 8, 2022 decision of San Diego Superior Court Judge Medel and not appeal it. The judge made clear in his decision that the City Council violated the law when it asserted authority it did not have to delay the outcome of an election and then change the rules of the election, ultimately declaring an outcome that was inconsistent with the certified results of that election.
On April 7, 2020, the City Council made the fateful decision to delay the outcome of the March 3, 2020 election for Measure C, without any authority to do so. California Election Code 10263(b) states that after an election, the governing body “shall meet at its usual place of meeting no later than the next regularly scheduled city council meeting following presentation of the 28-day canvass of the returns … to declare the results.”
That is not what the City Council did. Councilmember Jen Campbell made a motion to strike the language in the resolution prepared by city staff that declared Measure C defeated, and to leave open the outcome of the election. When other council members asked if this was legal, the City Attorney representative replied that declaring an outcome “is not specifically mandated by the California elections code or the San Diego Municipal Code.” She was wrong.
California law specifically mandates the declaration of results a month after the election.
This is the plain language of Election Code 10263(b). Judge Medel was unequivocal: “The City Council was required to declare what the city clerk certified.” It is unclear to us why the City Attorney advised otherwise, but Council should have been aware of this law anyways because it was pointed out to them in a letter we sent on February 26, 2021. After an election, the role of City Council is limited to the ministerial declaration of results. Period. There is no discretion or authority to do anything else. To the extent there was any confusion about state law on this point, Judge Medel’s judgment makes it abundantly clear.
An appeal from the judge’s decision would have to begin with challenging his finding that, “The City Council had no authority to delay its declaration of the results.” Is the Council prepared to do that — to assert authority that contradicts state law and is not found elsewhere?
If and only if the City is able to overcome that threshold, Council would then need to assert it had the authority one year later, in April 2021, to change the rules of the election after the fact to declare that Measure C had passed with a different threshold than was stated in the ordinance adopted by City Council before the election. As stated by Judge Medel, Ordinance No. 0-21143 was the “official legislation that established the rules of the process” and explicitly required a two-thirds vote for passage of Measure.
As a duly passed ordinance, this is the law of the city.
Because the City Council violated its own law (ordinance), adopting a new rule and applying it retroactively to the election, effectively changing its outcome, the Council’s April 2021 resolution doing so is “null and void as a matter of law.” The judge stated:
“In short, the resolution of April 2021 improperly changed the rules of the process after the election. A fundamental principle of election law is that election outcomes must be decided by reference to previously announced rules — the rules that were in effect at the time of the election and under which the election was held — and that changing those rules after the election has occurred renders the election fundamentally unfair and constitutes a violation of due process.“
An appeal would have to overcome the fact that city law required a two-thirds majority for the passage of Measure C, and the Council violated that law in attempting to change the rules after the fact. Council would have to assert that it had clear authority to violate its own law. Is the Council prepared to do that — to assert that it has the right to violate city laws?
To be clear, the appealable issues in this case are not about the appropriate vote threshold for a ballot measure. That is not what the judge decided this case on. The appealable issues are about the abuse of authority in delaying an outcome and changing the rules of the election, both of which are clear violations of the law. If the City Council decides to appeal, it will be deciding to double down on an abuse of authority that undermines our democracy and trust in you.
It is not in the voters interest, nor the taxpayers, that the City prolong this case with an appeal. It’s time to move on and learn from this experience. In light of this, we respectfully request that you not appeal Judge Medel’s decision.
* The April 7, 2020 resolution adopted by Council restated the certified results, but did not declare an outcome.
* We are aware that the City Attorney filed a “Notice of Appeal” but that appeal is not valid since the judge has not issued a final order to appeal from. Also, to our knowledge, Council has not authorized an appeal yet.