Patterico's Pontifications

7/20/2008

Without any context, I’d like the views of Patterico’s Visitors on what the following language means in terms of the timing of placing an initiative on the ballot

Filed under: General — WLS @ 10:51 am



Posted by WLS:

I’ll fill in this context later, but for now I’d like to know the manner in which commenters here would interpret the following language if you were a City Clerk being asked to validate an initiative for placement on the November election ballot.

“For Initiative Special Elections. A special election for an ordinance by initiative power shall be called within ninety days of filing of the petition if signed by duly registered voters equal in number to at least fifteen percent of the votes cast for mayor in the last regular mayoral election, and if such petition specifies that a special election be called; provided that if the clerk certifies less than fifteen percent but at least ten percent, the proposed ordinance shall be submitted at the next general election or scheduled special election. No special initiative election shall be held if an election is scheduled within one hundred eighty days of submission of the proposal.”

78 Responses to “Without any context, I’d like the views of Patterico’s Visitors on what the following language means in terms of the timing of placing an initiative on the ballot”

  1. I’m really interested in the context.

    It seems pretty straightforward to me.

    If a petition (a) says it requires a special election, (b) is signed by 15% of the number of people who voted in the last regular mayoral election, and (c) is submitted more than 180 days before a regular election, there must be a special election.

    If, on the other hand, the petition (a) doesn’t specify that it requires a special election, (b) is signed by enough voters to get it on the ballot but not enough to be 15%, or (c) is submitted within 180 days before a regular election, then the initiative must be consolidated with the regular election.

    The language doesn’t seem to leave me any discretion to choose to consolidate or not consolidate.

    aphrael (9e8ccd)

  2. The last sentence controls, since we are within the 180 days limit before the general election. (November 4)

    If there is no election scheduled, then the number of signatures on the petition will decide.

    If there are at least 15% of the number of people who cast a ballot for mayor in the last mayoral election, then it shall be scheduled within 90 days. If the number of signatures is more than 10% but not up to the 15% requirement, then it goes on the next regularly scheduled election (whenever that is).

    I can only assume that if there are less than 10%, no election will be scheduled.

    That’s how I read it, but maybe we should let the lawyers (who delight in writing language like this) try to prove me wrong.

    Drumwaster (5ccf59)

  3. Looks like Gertrude Stein is back from the dead.

    David Ehrenstein (85f463)

  4. I’d like to get a few more comments before adding the context, because I don’t want to context to influence the reading.

    I’ll tell you this though — the particular City Clerk in question has just read this provision to mean that a ballot initiative which contains the language “special election”, and submitted with more than 10% of the signatures, CANNOT go on the Nov. ballot because it’s less than 180 days away.

    In other words, the last provision BARS a proposed initiative that calls for a special election, and that special election is to be set AFTER the upcoming general election.

    WLS (02df99)

  5. provided that if the clerk certifies less than fifteen percent but at least ten percent, the proposed ordinance shall be submitted at the next general election

    Seems pretty straightforward to me, but maybe “shall be” means something different to lawyers.

    Drumwaster (5ccf59)

  6. WLS, seems like someone can’t read statutory language very well. There is no way that the last sentence bars an initiative from a ballot – it only operates to bar a special election.

    SPQR (26be8b)

  7. It seems pretty straightforward to me, too, but i’m also of the school of thought which says that the rules for initiatives and other forms of direct democracy should be construed as liberally as possible in the interest of encouraging public control over the state.

    I *can* come up with an argument for the other side. It runs something like this, using variables to substitute for the clauses:

    If [a] and [b] and [c], then special election.
    If [!a], then general election. If [!c], then general election.

    So what of the case where [a], [!b], and [c]? It doesn’t seem to fit either set of conditions.

    The way the clerk is reading the law, it’s saying that the only way to qualify an initiative for the ballot is for the petition to say that a special election is required. I think that’s a bizarre reading which is *technically* justifiable by a parsing of the words, but not the natural reading of the words, and clearly not the intent of the charter.

    I would support recalling the city clerk over this decision if it were my hometown.

    aphrael (9e8ccd)

  8. Wait. I can’t read, apparently, and misread WLS’ latest comment as saying that the petition doesn’t say it requires a special election.

    If the petition *does* say a special election is required, then we have [!a], [b], and [!c], in which case it’s clear that it should be consolidated with the general election.

    That makes the clerk’s bizarre reading completely unjustifiable, as opposed to marginally justifiable, and I would still support a recall. Assuming, of course, that the recall petition could ever qualify for the ballot with a city clerk determined to keep it off.

    aphrael (9e8ccd)

  9. Does this initiative limit the role or power of the City Clerk’s office?

    JD (5f0e11)

  10. Assuming the 10% threshold has been reached, the language would seem to require placement on the November ballot. I’d suggest that the clerk should be fired for failure to do his job, but I’m fairly confident he’s following the orders of his masters. Going to the court of appropriate jurisdiction and obtaining a writ of mandamus to beat the idiot about the head and shoulders with would seem to be the most useful course of action.

    M. Scott Eiland (a16843)

  11. Hi WLS,

    I’ve typed this without seeing the other comments.

    If I were a City Clerk to whom a petition were given, I would do the following, in this order:

    1. Determine whether or not the petition were signed by an amount of duly registered voters equal to at least 10% of the number of votes cast for mayor in the last mayor election.

    2. If not, I would politlely tell the submitter of the petition, “No dice.”

    3. If yes, I would pass it on th whoever sets elections. If I am that person, then I would put the initiative on this coming November ballot.

    Without knowing the exact problem involving the City Clerk, I can’t opine further without having to engage in mere speculation.

    Ira (28a423)

  12. I agree with Ira’s interpretation at 12:25pm.

    AMac (4575dd)

  13. OK. I’ve now read the comments, and WLS’s enlightening addition of context. (Comment #3.) I thought what WLS described there might be the problem. (I really did think that. Trust me. Have I ever lied to you before?)
    SPQR’s response (comment #5) is correct. Plain common sense reading of the statute. In addition, any other reading would give bizarre outcomes. (Thanks to aphrael, comments #7 & 8, for some illustrations.)

    Ira (28a423)

  14. apologies for length and for pseudo-code. I tried to think through it carefully. Aphrael, I think we’re in agreement over our interpretation, but I worked it through myself to make everything clear.

    Here’s what the language looks like if we break it down:

    For Initiative Special Elections.

    A special election … shall be called within ninety days of filing of the petition IF:

    [a] signed by duly registered voters equal in number to at least fifteen percent of the votes cast for mayor in the last regular mayoral election,

    AND IF [b] such petition specifies that a special election be called;

    provided that IF [c] the clerk certifies less than fifteen percent but at least ten percent:

    [THEN] the proposed ordinance shall be submitted at the next general election or scheduled special election.

    No special initiative election shall be held IF [d] an election is scheduled within one hundred eighty days of submission of the proposal.

    ——————————————–
    So what we’ve got here is:

    [a] The petition is signed by at least 15% …
    [b] The petition specifies that a general election be called
    [c] The clerk certifies 10% <= votes < 15%
    [d] An election (special or otherwise) is scheduled within 180 days

    if ( a && b )
    {
    if ( !d ) { Schedule a special election }
    //else? here’s where the clerk’s reading enters in
    }
    else if ( c )
    {
    submit with the next scheduled election
    }

    The language does support the clerk’s reading, but only if you ignore the fact that the language is specifically about the scheduling of special elections (under what conditions to hold one), with the (implied) fallback if (a && b && d) of placing the initiative in the next scheduled election. Such a fallback isn’t made explicit, which is where the clerk’s reading gets off the ground.

    Joe M. (2c11d0)

  15. I’d interpret it as being unclear!

    The first time, I read it, I thought it was trying find ways to get out of having special elections. That makes sense, they’ve got to be expensive and likely have lower turnout.

    So if you have 10-15 percent, lump it into the general. If it’s within 180 days of an election, lump it in again. That would make sense, given the way the paragraph flows.

    It would be very strange to think that it was intended to plan a special election after a regular election. What would be the point of that? The idea of having a big important presidential election and then, what, a special election 2 weeks later??

    That’s me looking for intent and fillng in the blanks; it sure doesn’t actually make it clear.

    MamaAJ (788539)

  16. All very interesting comments. Thank you very much.

    They all serve to reinforce the widely held view that the City Clerk in this instance is straining to keep this measure off the ballot at the request of the Mayor. I’ll give you all the facts a little bit later today, though its largely a local matter and I’m not too sure how interested anyone will be.

    But let me bend your minds just a bit by introducing this one other little twist that reveals better than just about anything else could the stupidity of the local political culture.

    While federal and state elections all use the terminology “primary” and “general” elections to distinguish one from the other, because local city council and mayoral elections are non-partisan pursuant to the City Charter, here they refer to the local elections as “Special Elections” — the first election, with everyone on the ballot who pulls nominating papers, is called a “Special First Election”, and if one candidate fails to get 50% + 1 vote, the top two vote getters are matched up in a “Special Second Election.”

    Which introduces a whole new layer of ambiguity into what is meant by the terms “Special Election” in the initiative process.

    WLS (02df99)

  17. Looks to me like the grounds to get a Clerk fired for not following the law about ballot initiatives.

    PCD (73c023)

  18. WLS: that’s a bizarre terminology.

    I get not wanting to call them general / primary. But ‘special’ ought to refer to an irregular called, not scheduled in advance, election, like one that is summoned for a referendum.

    I would call them “city council” and “city council runoff” elections, and would hope that the code speicfied that at least one of them be consolidated with the general election.

    aphrael (9e8ccd)

  19. MamaAJ: I don’t see any way that could lead to a special election two weeks after a general election. Since the special election must be 90 days after the petition is turned in, in order to get a special election 2 weeks after a general election the petition would have to be turned in 76 days before the general election … in which case you fall into the if-within-180-days-before-a-general-election rule.

    aphrael (9e8ccd)

  20. If you have 15%, you get a special election on the ordinance initiative within 90 days. If you have more than 10% but less than 15%, you don’t get a special election on the ordinance initiative but you get to go on the next scheduled election provided you submitted the petition 180 days ahead of that election. In either case, if we have a scheduled election within 180 days of submission of the proposal, you don’t get a special election even if you have 15%. We’re not going to waste the taxpayer’s money and work hours. You can wait, at the most, 90 days. You’ll get your ordinance initiative on the scheduled election ballot.

    nk (d1fed7)

  21. One thing we haven’t brought up–is there existing precedent on this point? Given how much many elected officials despise ballot initiatives, someone is bound to have tried this gambit before at some point to try to stall one–and the courts would have had to try to deal with the impasse.

    M. Scott Eiland (a16843)

  22. WLS #3,

    Better have 15%, or submit 180 days before the next scheduled election, if you only have better than 10% but not 15%, if you don’t want to wait until the scheduled election after the next. It’s pretty clear.

    nk (d1fed7)

  23. aphrael,

    WLS said in comment 3:

    In other words, the last provision BARS a proposed initiative that calls for a special election, and that special election is to be set AFTER the upcoming general election

    and I took that as meaning there would be a special election after the general. But now it seems to say that the barred special election is set for after…ack, I give up!

    Reminds me of a cute little issue in Philadelphia back in probably the early 90s. Penn had made a deal with the city to get some land, IIRC, and in exchange offered scholarships to 4 local students. For years, there were always 4 students with scholarships. When they graduated, 4 more were selected. Then someone decided that Penn should be doing more and that the agreement really called for four four-year (whee!) scholarships to be given out each year. So that after two years, there’d be 8 students with scholarships, etc.

    The fact that they’d been doing one way for years with no one complaining didn’t stop the rants, since it was poorly worded and a good issue to yell about.

    MamaAJ (788539)

  24. WLS,

    How frequently does your jurisdiction hold general and scheduled special elections? We know U.S. Congressional elections are held every 2 years. Are the local and State elections held at the same time or are some/all staggered?

    If at least one scheduled special election (e.g., a local or State election) occurs in the off-year, then under the City Clerk’s reading of this provision it would be difficult to have a special initiative election.

    DRJ (92ca6f)

  25. I guess I should add that it’s elementary statutory construction that laws should never be read in a way that renders its provisions meaningless, but if this is the appropriate reading then from now on petitioners should file their initiative petitions the day after an election.

    DRJ (92ca6f)

  26. It means it’s confusing as Hell and the rules need to be revised for clarity.

    roy (78d4a2)

  27. But DRJ…
    Our political betters have consistently attempted to dazzle us with their brilliance; and, failing that, to baffle us with BS!
    On virtually everything, they will tell us what we should think, and when.

    Another Drew (8018ee)

  28. Plus, if the Council won’t fire this Clerk, perhaps they should be recalled.
    There definitely seems to be a culture of self-protection lurking within the confines of City Hall.
    Time to break out the pitchforks, tar, and feathers.

    Another Drew (8018ee)

  29. NK: how is that case relevant? It seems to be about ballot access rules for write-ins, not about the scheduling of election dates.

    aphrael (9e8ccd)

  30. Didn’t read the other comments yet:

    3 possibilities:
    Special election if signed by 15+% of the number who voted in the last election. Place on the ballot of the next general election if it is 10+%. Nothing at all if there is a scheduled general election within 180 days.

    brobin (c07c20)

  31. Been pondering this for some time and by now it appears that I can’t add much, but maybe this.

    The issue in the last sentence is this, I think:

    The question is, does the petition carry a request for a special election (in which case the clerk might be technically right) or does it request that some question be put to the electorate by special election if necessary to satisfy some inherent time constraint. (I favor the lattr.)

    The problem here is a problem with all legislation–the situation extant at the time the rules were written apparently differs from the situation now, and the rules were apparently written to “cover all the bases” of the prior situation with no view of the layout of the bases now.

    Seems clear now that it would have been better to have a ruleset that speaks only to the issue of how to get the question on a ballot–any ballot.

    Then a ruleset should have been provided that specifies how a special election may be called, if there is a question for one.

    Larry Sheldon (86b2e1)

  32. If I’m the clerk, I do this:
    1. check to see that the number of signatures on the petition = at least 15% of the votes cast in the last mayoral election
    2. if 1 = yes, then the proposition prompts a special election within 90 days of the filing date OR, if an otherwise scheduled general or special election will occur within 180 days of the filing date, the proposition goes for a vote in that election (whichever is first?)
    3. if 1 ≠ at least 15% but = at least 10%, then the proposition will not prompt a special election but will go on the ballot alongside either the next general election, no matter when that occurs, or alongside the next special election, if that occurs within 180 days of the filing date (whichever is first?)
    4. if 1 ≠ at least 10%, the petition goes into the circular file
    I’m assuming that the date of “filing of the petition” = the date of “submission of the proposal,” though I’m uncertain why the two differing terms were used to describe the same date

    m (e6d974)

  33. I can see an argument for the City Clerk’s (and brobin’s) construction: Don’t let an initiative petition muddy the waters of a previously scheduled election with extraneous or last-minute issues filed within 180 days prior to that election. It’s basically a cooling off argument. That’s why it would matter to me whether the time frames work.

    Of course, the contrary argument is that the provision is really a cost-saving device aimed at avoiding extra elections when an already scheduled election will occur in the next 180 days. My gut tells me that’s really what this provision was designed to accomplish but I can’t say that for sure without seeing the legislative history.

    DRJ (92ca6f)

  34. the contrary argument is that the provision is really a cost-saving device aimed at avoiding extra elections when an already scheduled election will occur in the next 180 days.

    That’s what I assume is the case. You’re right that the legislative history would be helpful.

    No special initiative election shall be held if an election is scheduled within one hundred eighty days of submission of the proposal

    Interpreted the way that follows from “Don’t let an initiative petition muddy the waters of a previously scheduled election with extraneous or last-minute issues filed within 180 days prior to that election”, I end up with “if a petition is submitted within 180 days of an election, ignore it”; no special election shall be held, and no consolidated election shall be held, either.

    That seems to me to be a highly unintuitive reading.

    aphrael (9e8ccd)

  35. Gah! missing end-italic after ‘proposal’. My apologies.

    aphrael (9e8ccd)

  36. Aphrael #30,

    It stands for the proposition that election rules are valid. That democracy is an orderly process. That there is a right to vote under the First and Fourteenth Amendment but that right is not unlimited.

    In this instance, the ordinance itself gives rise to a presumption in favor of the special election. But subject to reasonable rules. WLS has not given us the facts, but if the petitioners could not get 15% and could not get their 10% + in within the next scheduled election then they are SOL. They should have started earlier and worked harder.

    nk (d1fed7)

  37. In this instance, the ordinance itself gives rise to a presumption in favor of the special election.

    Oops, make that *a presumption of the ordinance initiative being on a ballot*.

    nk (d1fed7)

  38. Seeking clarity, which is absent from the cited proposal, I think this revision summarizes the terms:
    For Initiative Special Elections: Must specify “special election” request.
    1. If signed by duly registered voters equal in number to at least fifteen percent of the votes cast for mayor in the last regular mayoral election, a special election for an ordinance by initiative power shall be called within ninety days of filing of the petition UNLESS an election is scheduled within one hundred eighty days of submission of the proposal, in which case the initiative shall called at that time.
    2. If signed by duly registered voters equal in number to less than fifteen percent but at least ten percent, the proposed ordinance shall be submitted at the next general election or scheduled special election.
    3. If signed by duly registered voters equal in number to less than ten percent, the petition occasions no action.

    m (e6d974)

  39. We need the date the petition was filed.

    nk (d1fed7)

  40. Even in California, the judiciary would force the initiative in question on the November ballot. The plain meaning is that initiatives are preferably placed in general elections. As DRJ pointed out, this saves a ton of time and treasure.

    Since the CA Supremes unanimously affirmed that the gay marriage initiative must be on November’s ballot, albeit under a wholly different challenge, I am sure they will act to give the people their say in WLS’ context.

    Ed (59b337)

  41. WLS:
    here they refer to the local elections as “Special Elections” — the first election, with everyone on the ballot who pulls nominating papers, is called a “Special First Election”, and if one candidate fails to get 50% + 1 vote, the top two vote getters are matched up in a “Special Second Election.”

    But the word “initiative” is not used in either of these cases. So I would think that this information is not relevant here.

    m (e6d974)

  42. m #42,

    I dunno. I think “scheduled” is important. I’ll go back to the presumption of the First and Fourteenth Amendments and the ordinance itself that the initiative should be on the ballot within a reasonable time. If not on the election coming up next because the petition was not filed within 180 days then the one after no matter what it’s called.

    nk (d1fed7)

  43. Ed, the challenge against Proposition 8 was absurd and deserved to die.

    That said, I do have some concern about the ballot language. The current approved language is “Amends the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: The measure would have no fiscal effect on state or local governments. This is because there would be no change to the manner in which marriages are currently recognized by the state.

    (emphasis added)

    The part I’ve emphasized is clearly untrue. I’m torn about how to handle this: is it better to allow language to appear which was true when it was approved but has since been rendered false, or it is better to have a rule allowing the language to be changed *after signatures are turned in*, given that such a rule could easily be abused?

    aphrael (9e8ccd)

  44. Google is your friend. (If the link works.) If the city clerk is saying you need 180 days even with 15%, she is being unreasonable. Sixty days is enough. See Burdick v. Takushi above. But if you follow the stories, it seems that she is being educated and moderating her position.

    nk (d1fed7)

  45. And how did I know, in the first place, to find a U.S. Supreme Court case about Hawaii’s election laws? Sometimes I scare myself.

    nk (d1fed7)

  46. Sometimes I scare myself.

    Try avoiding mirrors. That might help.

    Drumwaster (5ccf59)

  47. Go blow a seal, punk.

    nk (d1fed7)

  48. I’d rather drop a sand dollar in the jar for Jerry’s Squids. Just for the halibut.

    Yes, I know Dr. Demento, too. And “punk”? Wow, your command of epithets is such that you could easily intimidate a three-year-old. Who has tender feelings.

    Drumwaster (5ccf59)

  49. Um, returning to the matter at hand.

    Here’s a problem with the “reasonable” readings of the statute, such as was presented by m in #39. This might help in understanding the intent behind the statute, though I am not quite sure how.

    Suppose I present a petition/initiative for a new ordinance to the City Clerk. My petition specifies that a special election be called, and it is signed by greater than 15% of the voters.

    So far, so good.

    But I present it to the City Clerk on Tuesday, October 21st. That’s ten business days before the general election is to be held, on Nov. 4th. Plainly, that’s not enough time for the initiative to be considered, ruled valid, and included on the ballot for the next general election. Which obviously falls within the specified 180-day window.

    So it seems to me that the “reasonable” reading would charge the City Clerk with an impossible task, if a petitioner is dumb enough or smart enough to file a few days before a previously-scheduled general election.

    AMac (29c0bf)

  50. Sounds like Liberal college professor’s double speak. Playing a game of I win or you lose.

    Scrapiron (c36902)

  51. Yes, I know Dr. Demento, too.

    Well, actually, I don’t know Dr. Demento. But I did know a lifer who was disabilited out of the service for being a beer alcoholic too. There was no internet back then, though. He had a girlfriend.

    nk (d1fed7)

  52. AMac, I agree to a certain extent: the statute is badly worded.

    But in that case, I think the intent is clear: there must be an election 90 days later.

    aphrael (9e8ccd)

  53. But I did know a lifer who was disabilited out of the service for being a beer alcoholic too.

    You – and he – should have known better. It’s clear you have since moved on to the heavier hallucinogenics since then, too.

    Drumwaster (5ccf59)

  54. “Within a 180 days” means “it must be on or before 180 days”. It’s not a “too soon”, it’s a “too late”.

    nk (d1fed7)

  55. Given a number of signatures which are at least fifteen percent of the votes cast for mayor in the last mayoral election, a special election for an ordinance shall be called within 90 days of filing the petition. More shortly: given enough signatures, the special election will take place within 90 days of the filing.

    If the number of signatures is at least 10% of, but less than 15% of the number of votes cast for mayor of the most recent mayoral election, the petition/ordinance shall be presented for a vote at the next scheduled general/special election, without regard for the period of time involved.

    However, if the petition/proposal has been submitted within 180 days of a scheduled election, no special election shall be held. I presume the vote would be held during the scheduled election.

    Assuming that there is an actual petition in the real world recently submitted, and given it’s less than 180 until the next scheduled election, no special election should be held, and a differentiation between 10% and 15% is irrelevant

    This isn’t so hard if you’re used to working with programming logic.

    IF (signatures > 10% AND 15%) THEN
    &nbsp &nbsp &nbsp &nbsp IF (days-until-next-election < 180) THEN
    &nbsp &nbsp &nbsp &nbsp &nbsp &nbsp no special election
    &nbsp &nbsp &nbsp &nbsp ELSE
    &nbsp &nbsp &nbsp &nbsp &nbsp &nbsp schedule special election (within 90 days)

    Casey (9ee427)

  56. Oh, bloody heck, I HATE wordpress sometimes!! It won’t take whitespace or tabs!! and the ampersand-nbsp didn’t bloody work either.

    Try again:
    IF (signatures > 10% AND 15%) THEN
    IF (days-until-next-election < 180) THEN
    no special election
    ELSE
    schedule special election

    Casey (9ee427)

  57. I didn’t take the 15% versus 10% to mean anything more than the fact that some signatures on all petitions always turn out to be invalid. So the rule is written so that a clerk can’t automatically invalidate a request simply because some smarty pants signed as “Mickey Mouse” or “Jesus Christ”. So the clerk, or whoever is responsible for validating signatures on ballot initiative petitions, can’t just reject it based on a few phony signatures.

    Everyone who gathers signatures should know enough to get more than the minimum required, but no matter how diligent they are, they can’t be sure every signature will be valid.

    By the same token, if the powers that be want to, they could invalidate any signature they want for whatever reasons they want. What the 10% versus 15% makes them do is to try harder to kill the initiative.

    So, from a very naive perspective, I read it as this:

    If you want an initiative on the ballot you have to gather 15,000 good signatures. Take the petition with those 15,000 signatures to the clerks office. Unless the clerk can prove that 5001 of your signatures are not valid, your initiative will be on the ballot in 90 days unless there is a scheduled election within 180 days from the time you submitted it, in which case it will be on that ballot.

    Jaynie59 (18e5d1)

  58. Well … it seems to me that the only ambiguity in the language arises in the last sentence:

    No special initiative election shall be held if an election is scheduled within one hundred eighty days of submission of the proposal.

    This sentence is subject to two interpretations:

    1. The practical interpretation that, if there is an election already scheduled during the next 180 days, the proposal will be included in the next scheduled election instead of in a separate special initiative election.

    2. The plain meaning of the last sentence that, if there is an election already scheduled during the next 180 days, “No special initiative election shall be held.” Period.

    The first option presumes that the intent of the provision is to reduce the cost of elections by consolidating special initiative elections with already scheduled elections. The second option prevents initiatives from being put on the ballot with less than 180 days notice. There are valid arguments for both but the more I think about it, the more I wonder if option 2 might be the better answer since that is the plain meaning of the provision as written.

    DRJ (92ca6f)

  59. DRJ’s second explanation in #59 also solves the problem of what to do if an initiative is submitted a few days before the scheduled election:

    “No special initiative election shall be held.” Period.

    AMac (29c0bf)

  60. AMac,

    True, but it’s still a very poorly worded provision. Not only is it unclear but if the second option is the intended construction, it prevents any initiative from being put on the ballot during the 6-month period before a scheduled election. That’s the antithesis of what the provision purports to do, which is to provide a mechanism for special initiatives to be put on the ballot.

    DRJ (92ca6f)

  61. DRJ, maybe I’m not understanding something here, but would the last sentence (in your interpretation) bar the measure from being put on the ballot in this case? :

    provided that if the clerk certifies less than fifteen percent but at least ten percent, the proposed ordinance shall be submitted at the next general election or scheduled special election.

    I don’t think so. It seems that the last sentence just bars the scheduling of a new election. Am I wrong?

    The next step, of course, is to ask why a petition with (10% <= signatures = 15%) should have to wait.

    That’s the problem as I see it.

    Joe M. (7d287b)

  62. Hm. Text got excised between markers.

    That should read:
    The next step, of course, is to ask why a petition with 10% or more but less than 15% should go on the next scheduled election, but a petition with 15% or more should have to wait.

    Joe M. (7d287b)

  63. I have to agree that the statute is badly phrased. It was composed by someone who wanted it to sound all “legal”-ish – but still left all sorts of ambiguities.

    For instance, the last sentence reads “submission of the proposal”; is this the same as “filing of the petition” in the first sentence?

    The first sentence reads

    A special election… shall be called… if signed…

    But how can anyone sign an election?

    Also (as noted above) the statute does not address the minimum time before a scheduled election that an initiative petition may be submitted for inclusion on the ballot.

    Finally, the clerk seems to be correct in the interpretation of the whole: if a petition signed by >15% of the voters, and calling for a special election, is submitted, then a special election must be called, but if the submission is <180 days before a scheduled election, then no special election is held and the question is not included in the scheduled election. Which is stupid, but it is how the law reads. “The law is an ass.”

    Rich Rostrom (09ec82)

  64. original

    No special initiative election shall be held if an election is scheduled within one hundred eighty days of submission of the proposal.”

    Rich:

    but if the submission is <180 days before a scheduled election, then no special election is held and the question is not included in the scheduled election.{emp. me}

    I don’t see in the original where the question is NOT included within 180 days, just that no special election will be held

    Lord Nazh (899dce)

  65. The author of this statute should be writing articles on the interpretation of DNA matches for the LAT. He or she has the requisite skills.

    AMac (3c96c8)

  66. AMac 50: But I present it to the City Clerk on Tuesday, October 21st. That’s ten business days before the general election is to be held, on Nov. 4th. Plainly, that’s not enough time for the initiative to be considered, ruled valid, and included on the ballot for the next general election.

    Valiant! That makes some practical sense of the mess–but it causes other problems. If the restriction “No special initiative election shall be held if an election is scheduled within 180 days of submission of the proposal” governs all of the timetables in the statute, it could never happen, for example, that “the proposed ordinance shall be submitted at the next . . . scheduled special election” prompted by a petition with 15% signatures, since any scheduled special election prompted by a petition with 15% signatures would be on the calendar within 90 days, which is ipso facto within 180 days. Do petitions with more than 10% but less than 15% ALSO prompt special elections, and invoke the same 90-day rule? I don’t know.

    Here’s an example of how this could play out badly and invalidate various parts of the statute at the same time:
    I submit a petition that includes the “special election” language and has the 15% signatures–let’s call this petition type A (and petitions for special elections with more than 10% but less than 15% signatures, type B). It’s Nov. 5 and there are no elections scheduled for, let’s say, 365 days. My petition is accepted, and my special election is scheduled for within 90 days; let’s say the 90th day.
    If it’s true that “No special initiative election shall be held if an election is scheduled within 180 days of submission of the proposal,” then for the entire time period that my special election is scheduled, no other petition of type A can prompt an election that “shall be called within 90 days of the filing of the petition”; no special elections for type A petitions would ever be paired with other special elections; the scheduling of one special election would block the holding of any other for 180 days up until the time that the special election takes place.
    I’m leaving petition type B out of this, because I can’t tell if they are distinguished from petitions that prompt special elections or are among them; the heading “For Initiative Special Elections” suggests that they are petitions for special elections. If they do not lead to “special elections,” but only, say, piggyback on others, then the 90-day and the 180-day hold don’t apply to them, and a petitioner would get his petition voted on faster by going route B. Now, there’s some nonsense!

    m (e6d974)

  67. m #67,

    It would be interesting to locate the person that wrote the ordinance that WLS quotes.

    I suspect he or she would say, “Well, when the City Council considered this back in 199x, we reached agreement as to what needed to be done to clear up ambiguities in the initiatives process. I don’t know what your problem is, the language I used is perfectly clear! Hmmm… at least, it seemed so at the time… even if I can’t quite figure out what I was trying to say…”

    The truly amusing wrinkle would be if this ordinance was adopted through the initiative process.

    AMac (c822c9)


  68. I didn’t take the 15% versus 10% to mean anything more than the fact that some signatures on all petitions always turn out to be invalid.

    Interesting. I took it as meaning that to get a special election has a 15% threshold, and if you can’t meet that threshold, you get a consolidated election, which means (potentially) you have to wait significantly longer for the voters to consider your pet peeve.

    the more I wonder if option 2 might be the better answer since that is the plain meaning of the provision as written.

    I wonder what the rules of construction are in Hawaii? I would hope that there would be a bias in favor of interpreting the referendum rules so as to favor the cause of getting the referendum on the ballot. Also, I can’t think of any good reason for the drafters of the city charter to have *meant* that — it ends up creating a wierd situation that if there is no election within 180 days, there is a special election within 90, but if there is no election within 180 days, your petition is just meaningless; and the frequency of regular general elections could then render referenda impossible.

    I find it unlikely that that’s the result the drafters of the city charter intended.

    aphrael (9e8ccd)

  69. Amac 68: The truly amusing wrinkle would be if this ordinance was adopted through the initiative process.
    Hilarious.
    I am absolutely certain that Patterico’s visitors who have commented in this thread have spent more time trying to give the statute a reasonable reading than the statute’s writer did. And maybe more than the harried court clerk.
    We need context, WLS. And the statute writer needed to use lots more outlining and subordination and clear defining of terms. Appending the bit about the less-than-15%ers after a semicolon is just sloppy.

    m (e6d974)

  70. My sincerest apologies for the delay in getting the context post up. I didn’t intend to wait this long, but other events in life intervened. I’ll have it up a little later today. Thanks for your patience.

    WLS (68fd1f)

  71. WLS,

    I think it’s been an interesting theoretical discussion so don’t rush on my account.

    DRJ (92ca6f)

  72. WLS: Not complaining. Just encouraging! Against your earlier stated expectation that “I’m not too sure how interested anyone will be.”
    Anyway, you have 180 days after the filing of the blog entry to schedule a special followup. . . .

    m (e6d974)

  73. Good one, m. Of course, if it’s within 180 days of WLS’s next scheduled post, maybe he can forget about the follow-up.

    DRJ (92ca6f)

  74. If it’s within 180 days of WLS’s next scheduled post, he can forget about the follow-up…

    provided that the prospective blog contribution is read by duly registered readers equal in number to at least fifteen percent of the readers of the last regular posting. If the clerk certifies less than fifteen percent but at least ten percent, the proposed blog contribution shall be submitted at the next general posting or scheduled special posting.

    AMac (0f4b0c)

  75. Since we’re less than 180 days before the November election, there should be no new special election scheduled for the initiative.

    If there is already a special election scheduled, the initiative should be included with that election. (What if the already-scheduled special is too soon (next week, for instance) to add the initiative to it? The language does not specify what to do, so what should happen is undetermined.)

    Otherwise, it should go on the November election.

    Jim C. (33af9d)

  76. Now that the cat is out of the bag I thought I’d let you all know about another wrinkle- the call for a “special election” is contained in the actual submission but it is NOT in the actual wording of the operative part, it is in the preamble.

    Andy Parx (209210)

  77. Andy Parx is too modest in #77 to refer to the post he wrote at his blog on July 17th on the topic WLS discusses here. It’s good.

    AMac (0f4b0c)


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