Nora Frimman, City Attorney February 8, 2023 The Honorable Beth McGowen

Conclusions 11

• CL1 Page 24
  The Civil Grand Jury finds that in the current environment, which is unregulated at the locallevel, it is easy for the author of a ballot measure question to write the question in a way that is confusing or misleading to voters.
• CL2 Page 5
  This memorandum provides an overview of, and response to, the Finding and Recommendations of the Santa Clara County Civil Grand Jury Report entitled, “If You Only Read the Ballot, You’re Being Duped.” In response to Finding 1, the City disagrees with the Grand Jury’s Report which alleges that the drafting of ballot measure question titles is unregulated at the local level. Accordingly, the City will not be implementing the recommendations proposed in the Report. EVALUATION AND FOLLOW-UP: Upon approval of this memorandum by Council, the City Attorney will submit the memorandum to the presiding judge of the Superior Court. No additional evaluation or follow-up is required. CLIMATE SMART SAN JOSE: The recommendation in this memo has no effect on Climate Smart San José energy, water, or mobility goals. PUBLIC OUTREACH: By the very nature of the Grand Jury’s report and its release, public outreach requirements have been met. Additionally, upon approval of this memorandum by Council, the City Attorney will submit the memorandum to the presiding judge of the Superior Court. T-44419 / 1982205
• CL3 Page 3
  HONORABLE MAYOR AND CITY COUNCIL December 8, 2022 Subject: SANTA CLARA COUNTY CIVIL GRAND JURY REPORT: IF YOU ONLY READ THE BALLOT, YOU’RE BEING DUPED” Page 5 COORDINATION: This memorandum was coordinated with the City Attorney’s Office. COMMISSION RECOMMENDATION/INPUT: No commission recommendation or input is associated with this action. CEQA: Not a Project, File No. PP17 008, General Procedure and Policy Making resulting in no changes to the physical environment. /s/ Nora Frimann______________ NORA FRIMANN San José City Attorney Office of the City Attorney For questions, please contact Matthew Tolnay, Deputy City Attorney, at (408) 535-1900 or [email protected]. Attachment A: Grand Jury Report T-44419 / 1982205
• CL4 Page 7
  IF YOU ONLY READ THE BALLOT, YOU’RE BEING DUPED 2022 Santa Clara County Civil Grand Jury October 7, 2022 Release date here Page 0of 23
• CL5 Page 8
  TABLE OF CONTENTS GLOSSARY AND ABBREVIATIONS..........................................................................................2 SUMMARY.....................................................................................................................................4 BACKGROUND.............................................................................................................................5 METHODOLOGY..........................................................................................................................6 INVESTIGATION...........................................................................................................................6 CONCLUSION ..............................................................................................................................16 FINDINGS AND RECOMMENDATIONS..................................................................................17 REQUIRED RESPONSES ............................................................................................................19 REFERENCES..............................................................................................................................21 Page 1 of 23
• CL6 Page 9
  GLOSSARY AND ABBREVIATIONS Attorney General The chief law officer who represents a state in legal proceedings. Ballot Card The printed ballot, usually on high-grade paper, consisting of the ballot questions and names of individuals running for elected office. Ballot measures are proposals, usually at a county or local Ballot Measure level, to enact new laws or repeal existing laws, whichare placed on the ballot for approval or rejection by the electorate. Ballot Proposition Ballot propositions are proposals, usually at the state level, to enact new laws or constitutional amendments or repeal existing laws or constitutional amendments, which are placed on the ballot for approval or rejection by the electorate. For purposes of this report, Ballot Question or Ballot Ballot Question or Ballot Label means the 75-word or less statement of a measure Label that precedes “Yes” or “No” on the ballot card. Boards and Commissions Boards and Commissions are made up of residents who volunteer their time and expertise to assist and advise governing bodies in the chosen capacity. Caselaw Law or legal precedent established by the outcome of court cases. County Counsel or Office of The County Counsel is the chief legal advisor and the County Counsel representative for the county, including the county board of supervisors and all county agencies and departments. Elections Code A collection of California laws related to public elections. Page 2 of 23
• CL7 Page 10
  A jurisdiction such as a city, county, school district, Governing Entity special district, or political subdivision. The right of self-government that is granted by state Home Rule constitution or statute to give autonomy to a local government. Home Rule implies that each level of government has a separate realm of authority. Opinion polls are designed to represent the opinions of a Public Opinion Pollsters population by conducting a series of questions and then extrapolating generalities in ratio or within confidence intervals. A person who conducts polls is referred to as a pollster. The department responsible for the operation, Registrar of Voters administration, and direction of the elections department, with primary responsibility for the registration of voters, the holding of elections, and all matters pertaining to elections. Per Article II, Section 8(d) of the California Constitution, Single Subject Rule “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” Essentially, the rule stands for the notion that where an initiative embraces more than one subject, it can neither be submitted to, nor enacted by, the voters. A specified number of terms (in years) that a person in Term Limits office is allowed to serve. In California, writs of mandate are used by superior courts, Writ of Mandate courts of appeal, and the Supreme Court to command lower bodies, including both courts and government agencies, to do or not to do certain things. Page 3 of 23
• CL8 Page 11
  SUMMARY It is not uncommon for the public to be confronted daily with news and information through multiple sources—traditional television programming, 24/7 cable news, satellite radio, social media, and phone alerts. In the context of elections, voters’ busy lives can be overwhelmed with many different voices. County and state voter information guides are required by law tobe mailed to every registered voter, but voters today do not have a lot of time to read these resources. As a result, the ballot measure question printed on the ballot itself becomes a key factor in the outcome of an election. There is an expectation in California law that ballot questions be drafted in a manner that is not false, misleading, or partial to one side.1 But there are ways to work around it. Among the fifty or so jurisdictions in Santa Clara County that are eligible to put forth a ballot measure, the 2022 Santa Clara County Civil Grand Jury (Civil Grand Jury) has seen ballot question language that is confusing, advocacy-oriented, or simply dishonest. Yes, sometimes voters are being deceived. Many voters cannot comprehend the complicated language or the implications of that "yes” or "no” vote. In a perfect world, voters would have the luxury of time to research these issues. In reality, however, voters almost always rely on the language of the ballot measure question itself. What ccaann bbee ddoonnee aabboouutt tthhiiss?? TThhee CCiivviill GGrraanndd JJuurryy pprrooppoosseess aann oovveerrssiigghhtt ppeerrssoonn oorr bbooddyy,, oonnee wwhhoo hhaass ttaakkeenn aann ooaatthh ttoo aacctt wwiitthh iinntteeggrriittyy,, iiss wweellll vveerrsseedd iinn tthhee rreeqquuiirreemmeennttss ooff tthhee llaaww,, aanndd iiss eemmppoowweerreedd ttoo rreevviieeww aanndd ttoo rreejjeecctt bbaalllloott qquueessttiioonn wwoorrddiinngg tthhaatt iiss ffaallssee,, mmiisslleeaaddiinngg,, oorr ppaarrttiiaall ttoo oonnee ssiiddee.. Santa Clara County should have a climate whereby governing entities in Santa Clara County are discouraged from using dishonest or deceitful wording in a ballot question, especially when they know it will be reviewed and could be rejected. In so doing, due process will be strengthened. With clearer writing, ballot measure questions will be more transparent and straightforward, which will lead to a better perception of government by the voters. It is time to remove impediments to good governance. 1California Elections Code section 10403 requires a ballot question to “conform to this code governing the wording ooff pprrooppoossiittiioonnss ssuubbmmiitttteedd ttoo tthhee vvootteerrss aatt aa ssttaatteewwiiddee eelleeccttiioonn..”” TThhee CCaalliiffoorrnniiaa EElleeccttiioonnss CCooddee ccoonnttaaiinnss SSeeccttiioonn 99005511,, wwhhiicchh pprroovviiddeess tthhaatt iinn aa ssttaatteewwiiddeeeelleeccttiioonn tthhee bbaalllloott ttiittllee aanndd ssuummmmaarryy ooff aann iinniittiiaattiivvee oorr rreeffeerreenndduumm mmuusstt bbee aa ““ttrruuee aanndd iimmppaarrttiiaall ssttaatteemmeenntt ooff tthhee ppuurrppoossee ooff tthhee mmeeaassuurree iinn ssuucchh llaanngguuaaggee tthhaatt tthhee bbaalllloott ttiittllee aanndd ssuummmmaarryy sshhaallll nneeiitthheerr bbee aann aarrgguummeenntt,, nnoorr bbee lliikkeellyy ttoo ccrreeaattee pprreejjuuddiiccee,, ffoorr oorr aaggaaiinnsstt tthhee pprrooppoosseedd mmeeaassuurree..”” ((EElleecc.. CC.. §§99005511((cc));; sseeee aallssoo,, MMccDDoonnoouugghh vv.. SSuuppeerriioorr CCtt.. ((22001122)) 220044 CCaall.. AApppp.. 44tthh 11116699,, 11117722..)) Page 4 of 23
• CL9 Page 23
  Civil Grand Juries are charged to help government develop practical solutions to improve government operations. Poorly worded ballot questions may not be illegal, but if they withhold information to shield what is really at issue, they are unethical. There are insufficient workable checks and balances to prevent this ongoing issue from being curtailed. Not doing anything about this only adds to the distrust of government. The Civil Grand Jury recommends that elected officials be held accountable—ballot questions must be transparent and clear in order to enable today’s voters to make informed decisions. The Civil Grand Jury wants governing entitiesto know that the public is paying attention and will not tolerate questions that are anything less than truthful, impartial, and fair. Further, ballot measure questions need to be straightforward, understandable, transparent, and honest. Page 16of 23
• CL10 Page 24
  FINDINGS AND RECOMMENDATIONS Finding 1 The Civil Grand Jury finds that in the current environment, which is unregulated at the locallevel, it is easy for the author of a ballot measure question to write the question in a way that is confusing or misleading to voters. Recommendation 1a The Board of Supervisors should ask the County Counsel to review all ballot questions submitted to it pursuant to Recommendation 1b. Recommendation 1b Governing entities2 within Santa Clara County should voluntarily submit their ballot questions to the County Counsel for review prior to submission to the Registrar of Voters, unless and until Recommendation 1d is implemented. Recommendation 1c Governing entities3 within Santa Clara County should, by March 31, 2023, adopt their own resolution or ordinance to require submission of their ballot questions to the County Counsel for review prior to submission to the Registrar of Voters, unless and until Recommendations 1d and 1e areimplemented. Recommendation 1d The County should create an independent, citizen-led oversight commissionlike the recommended Good Governance in Ballots Commission as described in the “Solutions” section of this report. The Commission should be implemented by August 1, 2024. 2There are approximately 50 governing entities within Santa Clara County. The Civil Grand Jury has elected to address theserecommendations to the County, cities, and a select number of special districts and school districts that have historically the most measures on the ballot for response. The Civil Grand Jury encourages all governing entities to adopt these recommendations. 3Id. Page 17of 23
• CL11 Page 25
  Recommendation 1e Governing entities4 within Santa Clara County should submit their ballot questions for review by the Good Governance in Ballots Commission pursuant to Recommendation 1d. Recommendation 1f The County should, by March 31, 2023, take appropriate action to request that the state legislature consider amending current law to require the County Counsel to review and approve local ballot measure questions before they are voted on. 4Id. Page 18of 23

Agency Responses 1

Government agencies' official responses to this report's findings and recommendations. Click on a response to see the structured breakdown.