ALCO Board of Supervisors Pass First Reading of Recall Amending Ballot Measure Legislation, Second Reading Tuesday

This past Tuesday, the Alameda County Board of Supervisors [ALCO BOS] unanimously passed legislation to create a ballot measure that would, if passed by voters, change ALCO’s charter rules on recalls of county officials. The measure would delete the text of ALCO’s archaic 98 year old Charter Section 62 on recalls, written at a time when the State of California had different recall rules, and before the advent of many state and federal election laws. If the ballot measure-placing legislation passes a second reading this Tuesday, is forwarded to voters and passes, Section 62 would contain only one sentence, locking the County’s process to the State of California’s recall rules. Accompanying legislation would schedule the ballot measure to the March 5 special election.

Urgent Process for a Long-Known Problem

The urgency of the legislation—emphasized several times by ALCO BOS Counsel Donna Ziegler—may have seemed to some observers to come months, and even years, late. Ziegler hinted in August that neither the County nor the Registrar of Voters [ROV], headed by Tim Dupuis, was ready for a recall when Save Alameda for Everyone [SAFE], the prime movers of the DA Pamela Price recall, sought to initiate the process. Questions around the feasibility and constitutionality of the Charter recall process were already swirling, as Dupuis' ROV delayed its response about how to initiate the process. The questions around the recall process merged with concerns about Dupuis' competency in the role of ROV, given several significant failures in holding transparent, effective elections. It would become clear only later that the delay was caused by the lack of any preliminary process in Section 62 at all.

In a recently published recall procedural guide, the ROV shockingly admits that many sections of ALCO’s recall process are no longer constitutional and must be ignored—and that some, like the preliminary process for starting a recall—do not exist. The guide is essentially triage for Section 62, patching the recall process together with state rules wherever 62 is lacking. But a path to definitive action to cure the process appears to have only arrived this month at BOS, with a rush Tuesday to pass the ballot measure legislation in time to get it on an already scheduled primary election for March 5.

Charter Rules May Range from Impractical to Near-Impossible

Under Section 62, the ROV has ten days from the receipt of the recall petition to verify the qualifying number of signatures—73,195, according to the byzantine equation in the charter, which sets that figure as a percentage of the total voters in the last gubernatorial election.

The timeline from verification to holding the election is also extremely brief. Section 62 requires the ROV to hold an election between 35 and 40 days after signatures are validated, a timeline for the ROV that Ziegler’s legislative report to BOS says is unlikely—especially when considering the effort and time necessary for mailing ballots, ballot information and guides to 900k voters as well as ballots to military personnel overseas.

According to the report accompanying the legislation, Section 62 also often conflicts with State of California rules and other voter rights. The Charter mandates that the replacement nominees for the recalled official be included in the ballot, but refers to a now non-existent state law to guide that process. The handbook states that the ROV may not be able to find a way to place the replacement candidates on the same ballot. Section 62 also requires signature gatherers be Alameda County registered voters—according to the report, that requirement has been found to be unconstitutional by the US Supreme Court in other contexts and the ROV couldn't follow it. According to the Uniformed and Overseas Citizens Absentee Voting Act, military personnel must receive their ballot at least 45 days before an election, which would seem an impossible goal for the Registrar to accomplish within the ALCO Charter’s time frames.

Despite offering the bespoke hybrid of Charter and State rules, the ROV’s procedural handbook, somewhat startlingly, expresses doubt that the ROV can even meet the key Charter requirements that can’t be substituted with state rules—like the 10 day signature verification deadline:

Regardless of the technique used, the ROV has 10 days from the date of filing of the petition, or any supplement to the same, to determine whether the petition is signed by the required number of voters, certify the results of the examination, and notify the proponents. Because the number of pages or sections may be in the tens of thousands for countywide offices, it may not be possible to comply with this 10 day deadline mandated by the Charter.

Small Contingent of Recall Supporters Oppose Changes

A little over a dozen members of the public commented on the item at Tuesday’s meeting, most from a recall-supporting protest group of about a dozen that had called for a day of action around ALCO’s recall process. Several of the speakers were victims of crime, or relatives of victims, including Patricia Harris, whose son was killed in what was eventually found to be an accidental shooting by Price’s office. Harris claims that the shooting was deliberate, despite the District Attorney’s findings from testimony of eyewitnesses at the scene that the gun was unintentionally discharged.

“My son was murdered in Castro Valley, the guy was up on murder charges, until Pamela Price came into office, who let him off with involuntary manslaughter with two years served at Santa Rita,” Harris said.

Harris, like several others, complained of changing the process in “mid-stream”

Others, like Mindy Pechenuk, a leader in the County’s Republican party and a Larouche activist, claimed that an attempt to fix the charter was unnecessary.

“We need to have the recall stay as it is, it works, it functions, and there’s no need to change it at all.

Brenda Grisham, the self-proclaimed leader of the recall movement, dismissed concerns about the potential issues around the constitutionality of the recall.

“It is unfair in the middle of us getting our signatures to say that you want to make a change. If you want to make a change, you should wait until we recall Pamela Price and see how constitutional it is after that,” Grisham said.

Changes Focused on Curing Section 62, but not Necessarily the Price Recall

Ziegler responded to some of the commentary later in the meeting, arguing that the ballot measure itself has nothing to do with the current recall—leaving Section 62 as-is runs the risk of failed processes open to legal challenges for both this recall and any in the future.

Allyssa Victory, representing the ACLU of California supported Ziegler’s analysis in her public commentary on the process, and expressed concern that the County timelines would not be sufficient.

“We agree with the legal analysis that was included in County Counsel’s memo that the timelines are impractical and can infringe on the rights of some of our residents, including those that need to receive mail in ballots, absentee voters…this is not election interference or delay, but election compliance,” Victory said during the Zoom comment.

For all the criticism of the handful of recall activists Tuesday, it's not clear whether the charter amendment, if passed, will affect the current Price recall or how—Ziegler maintained that she was unable to give answers to every question from the Supervisors at the meeting. The period to collect signatures ends on March 5, according to a statement made by Ziegler at the meeting, the same day as the special election when Alameda County voters will decide on the ballot measure. But the group succeeding in collecting enough signatures with sufficient time ahead of the March date would prompt the Registrar to try to validate the signatures and set the election date—the very problems the ballot measure seeks to address which Ziegler and the ROV say may be insurmountable. Vociferous opposition to the ballot measure by recall organizers like Grisham indicate that collecting enough signatures in time for a March 5th election is an outcome even the recall organizers think unlikely.

The new recall rules would require about 20,000 more signatures than currently specified under the charter, but it's not clear if that limit would apply to the current recall. It’s also not clear when the legislation would take effect, as charter changes must be submitted to the Secretary of State for validation before they can be instituted.

State Recall Rules Would Relax Timelines

If the legislation passes a second reading, and the subsequent ballot measure passes, the state rules would require the validation period to be 30 days, and for the election-setting period to be 88 days–and up to 180 days if that would allow it to coincide with a regular election date. A calculation performed by this publication shows even with the 180 day extension, using all the time in each deadline would only reach to late October, barely missing a November regular election and forcing the election to happen months sooner than that. Confirmation of a potential election date timeline under state rules and other questions were sent to the ALCO Counsel’s office, but the Counsel had not responded by press time.

Little Doubt on Need for Changes, but Questions Remain on Specifics

There was little to no debate among Supervisors about the need to pass the ballot measure setting legislation, and comments were mostly confined to asking questions Ziegler often did not have answers to.

Supervisor David Haubert seemed to encapsulate the mood of the board when he noted that when presented with the scope of the issues in Section 62, the Board is compelled to take action.

“I recognize this is not about any one effort or elected official, it’s also not about anything other than reconciling Alameda County being the only County that does provide provisions for recall that are inconsistent with state law becoming consistent with state law,” Haubert said.

Ziegler noted that whatever path ALCO takes with whatever outcome, the County could face lawsuits from various parties over failure to adhere to Section 62 in the current process.

“Our recall election provisions are problematic and it presents the potential that no matter what happens…one side or the other may raise claims because we didn’t comply with our charter…the ROV has indicated that he can’t comply with the charter provisions as currently drafted...” Ziegler said.

Ziegler told the board she will have answers to some questions this coming Tuesday for the second reading of the legislation. But those answers were not included in a written report for Tuesday’s agenda and will likely be oral.

No Council Meeting this Week

This is a shorter brief than normal, as there is no Oakland City Council meeting this Tuesday. The committee items previewed in the last Oakland Obsesrver report were successfully forwarded to the November 7 meeting. You can read more about them in last week’s update.