Measure B: The Dysfunction of Democracy


As poor a project as the BART extension to San Jose is, the process by which a sales tax was passed was even worse. With VTA unable to afford to run the project, even if it could find the capital dollars to build it, the agency put a sales tax known as Measure B on the ballot. If successful, it would enable the agency to continue seeking federal funds for the project (after VTA had been forced to withdraw the project from federal consideration, due to inadequate operations funding).

VTA sought approval of a 1/8 % sales tax, for operating the BART extension. While opponents contended that this tax wasn’t adequate to run a BART extension, and that VTA had hidden a $2 billion project cost increase from the voters, the sales tax did ultimately pass in November 2008.

Election night 2008 ended with Measure B at 66.27%, failing to reach the required 66.67% threshold for a sales tax. As the counting continued over the next two weeks, the results started to change on November 7, resulting in BART proponents popping champagne corks on November 22. This very close race was won by less than one vote per precinct.

The final result of 66.78% had a margin of victory of 0.11%, less than the minimum 0.5% margin of victory specified in emergency regulations issued by the Secretary of State, to ensure the accuracy of machine-counted elections. The regulations require a manual recount of 10% of the precincts when a race has less than the minimum margin of victory, to assure voters that the results were accurate.

Opponents of Measure B discovered, however, that the regulations had been flawed as regards the definition of the margin of victory for ballot measures requiring a 2/3 supermajority. As a result, the Santa Clara County Registrar of Voters refused to perform the otherwise-required manual recount.

After fruitless discussions with the Secretary of State's attorney, TRANSDEF was forced to go to court to seek an order for a manual recount.
Press release. Due to the maneuvering of the attorney for the Secretary of State, TRANSDEF was forced to refile its case in San Francisco, for hearing the following day. See Application for TRO, Declaration of David Schonbrunn, and Proposed Order.

However, that delay enabled the Registrar of Voters to certify the election results prior to that second hearing. The judge then ruled that TRANSDEF's request for a temporary restraining order to prevent the certification of the election results was moot.

The court hearing received extensive coverage on local TV and radio. The response in the press to the judge's ruling was quite strong. The Mercury News ran an
editorial urging that a recount be conducted. The Palo Alto Daily Post ran a powerful editorial questioning the Registrar's impartiality: Part 1 Part 2. TRANSDEF then issued a further Press release.

In an election that was won by a few hundred votes out of six hundred thousand, opponents of Measure B did not get a fair shake. With victory depending on every single ballot being properly counted, there's no way anyone can state with certainty that Measure B received more than 66.67% of the vote.

What made the election especially troubling was that the results changed after the election. Even though it lost election night, Measure B eventually passed. This resulted from the counting of provisional ballots. This was especially suspicious because of the dramatic way the percentage of Yes votes changed as the provisional ballots were counted (see
Chart and Table).

It appeared as if ballots were being stuffed into the counting process in order to push the tally over the 66.67% threshold. Rumors that the announced number of ballots left to count had kept increasing added fuel to this fire. These rumors were later determined to have been incorrect.

On December 8, the last day to file for a recount, TRANSDEF personnel spent the entire day at the Santa Clara County Registrar of Voters' office, performing a due diligence review of election results and internal reports. The team left, satisfied that there was no way enough ballots could have been introduced into the count to change the outcome of the election.

TRANSDEF is convinced that a miscarriage of justice has taken place with Measure B. The Secretary of State's attorney vigorously defended an indefensible screwup of the regulations. He created an opening that the Registrar of Voters then exploited.

Whether the Registrar's motivation was to save money in a time of budget deficits, or to serve the interests of his bosses, the Board of Supervisors, who supported Measure B, the outcome was the same. The reputation of the Registrar will always be clouded by his decision to certify the election prior to the hearing. He would have had the appearance of impartiality, had he waited until after the court hearing.

The system let the voters down, by not giving them the manual recount they clearly deserved. However, TRANSDEF was able to determine that no major mischief with the ballots had been perpetrated.