Blog Post < Previous | Next >
Marin Post
Registrar of Voters defends Kate Sears' improper Candidate’s Statement
In the recent post, Kate Sears violates California Elections Code – Marin Registrar of Voters must enforce rules, the Marin Post asked readers to contact the Registrar of Voters and voice their concerns about inappropriate language used by Supervisor Kate Sears, in her draft “Candidate’s Statement.” Readers responded by sending emails and calling the Registrar’s office. They asked the Registrar to uphold both the letter and the spirit of the law, and require Supervisor Sears to retract remarks that were inflammatory or casting aspersions on her opponent, Susan Kirsch.
In particular, Sears’ comments such as “misleading charges will be leveled. Facts will be distorted,” and “Now’s not the time for a rookie,” were not only groundless and inappropriate, but violated the California Elections Code.
As stated in the Code, in Section 13307(a)(1):
The statement may include the name, age, and occupation of the candidate and a brief description, of no more than 200 words, of the candidate's education and qualifications expressed by the candidate himself or herself.
And Code Section 13308, states that:
In addition to the restrictions set forth in Section 13307, any candidate's statement submitted pursuant to Section 13307 shall be limited to a recitation of the candidate's own personal background and qualifications, and shall not in any way [Emphasis added] make reference to other candidates for that office or to another candidate's qualifications, character, or activities.
In response to dozens of inquiries, Lynda Robert, the Marin County Registrar of Voters, released the following statement:
Thank you for your inquiry. Over the years, this office has used the court case Hammond v. Agran (1999) 76 Cal.App.4th 1181, to help interpret the word “qualifications” referenced in Elections Code section 13308. We believe that both candidates’ statements for the District 3 Supervisorial race, including generalized opinions and/or statements, are in compliance. In addition, there is a 10-day public review period after the candidate filing period ends that allows anyone to file a Writ of Mandate in Superior Court.
A list of important dates, including this review period, is included in our candidate guide that is given to everyone who files to run for office. During the review period for the office in question, no one complained or filed a Writ of Mandate regarding the candidate statements for the District 3 Supervisorial race. Lastly, prior to finalizing statements for the sample ballot booklet, we email to each candidate a copy of the final typesetting proof. All statements are included on the proof.
I hope this information has been helpful in addressing your concerns.
Sincerely,
Lynda Roberts
REGISTRAR OF VOTERS
County of Marin
Elections / Registrar of Voters
3501 Civic Center Drive, Suite 121
San Rafael, CA 94903
415 473 6401 T
415 473 6447 F
To the average reader, this legalese response certainly sounds “official.” But for those not versed in this kind of government boilerplate, let me translate it for you, into plain English.
We are an unelected government agency. We can throw legal citations at you to make you feel powerless and to get you to go away. In addition, you have missed the legal complaint filing deadline, so we don’t really have a care what you think. And if the candidates didn’t complain, why should we care what you think?
Too cynical, you say? Well, we'll see. The Marin Post decided to investigate further.
We asked our legal counsel to look at the case law she recited, Hammond v. Agran (1999) 76 Cal.App.4th 1181. Our counsel’s response was as follows:
The use of the Hammond case is not intellectually honest because Hammond’s facts and holding are not analogous to Supervisor Sears’ statements. In Hammond, the incumbent essentially bragged about leading the city council to a certain policy result. The Hammond court ruled that a candidate's own policy views regarding his or her own qualifications regarding publicly considered projects and city actions can be considered "qualifications." The court stated that ”the word "qualifications" in section 13307 includes a candidate's views on public issues." Essentially, the court considered whether boasting about policy victories was permitted and whether such boasting could be considered a critique or attack on the qualifications or experience of the opponent. The court held that boasting was allowed but that personal critique and attacks were still prohibited.
“Facts will be distorted” or "No time for a rookie" obviously are not policy views or taking credit on any public project or policy, and as such, obviously do not relate to Supervisor Sears’ own qualifications. Thus, Sears' statements are not critiques of her own policy views or victories, but are attacks on her opponent's supposed tactics and experience. Interpretations of Hammond by respected practice guides such as "Witkin Summary of California Law" and "California Jurisprudence" refer only to the candidates “own views” and clarify that the Hammond opinion does not allow for “criticism of another candidate.”
In other words, the Registrar's citation is nonsense that has nothing to do with the complaints brought, and avoids the issue at hand: that what Supervisor Sears wrote is both unethical and violates the Elections Code. This also means that Lynda Roberts is either ignorant of the law or is completely comfortable quoting case law, which she knows full well is unrelated.
So does the Registrar of Voters even care what the truth is?
This would all be bad enough. But then we investigated her claim that “During the review period for the office in question, no one complained or filed a Writ of Mandate regarding the candidate statements for the District 3 Supervisorial race.”
It turns out that this was technically correct ("during the review period") but not an accurate statement about what transpired.
The Plot “Sickens”
The Marin Post has learned that spokesmen for the Susan Kirsch campaign did, in fact, make a complaint immediately after learning about the disparaging statements in the draft Kate Sears’ candidate’s statement.
The ten day statutory period to make a formal complaint and file a Writ ran from March 12, 2016 thought March 21, 2016. Notwithstanding that this may be the shortest statutory period on the books for anything, anywhere in the country, for reasons that remain unexplained Dan Miller of the Elections office did not send Susan Kirsch a copy of Kate Sears draft statement until March 30th (note that the date of the copy is “3/28/16”, found in the upper right hand corner of the draft) - nine days after the end of the 10 day statutory period to make an objection had ended.
Once that draft was received, the Kirsch campaign called Dan Miller, immediately, and objected to the same three items noted above: that saying that “misleading charges will be leveled. Facts will be distorted,” and “Now’s not the time for a rookie,” was inappropriate and violated the California Elections Code.
There is no doubt it was the responsibility of the Kirsch campaign to monitor the statutory dates involved, dates which were disclosed to them in their candidate’s filing information packets. Not doing that diligently was their mistake. Still, when they did complain, Registrar’s office told them that they would look into the matter and get right back to them.
It also turns out that contrary to Lynda Roberts’ claim, as a direct result of the complaint lodged by the Kirsch campaign, Kate Sears did, in fact, get her wrist slapped by the Elections Committee, which asked Sears to remove the reference to Susan Kirsch being a “rookie.” Kate Sears’ then revised candidate’s statement (attached below), which now says “Now’s the time for experienced leadership.”
Though somewhat of a distinction without a difference, legally, Sears will now argue she is touting herself, not denigrating her opponent.
All’s fair in love, war and politics.
However, on the other two complaints, the Registrar’s office did nothing. They’ve allowed Kate Sears’ inflammatory statements to remain, intact, even though there is no safe harbor for them based on the erroneous citation of case law, noted above.
Yes, one could argue that the Kirsch campaign should never have trusted the word of Office of the Registrar of Voters. But our investigation indicates that they were led to believe that their claims would be satisfied. So what’s the moral of this story? Never trust that the office of the Registrar of Voters will do their job and ensure that candidate’s statements adhered to the law?
None of the technicalities invoked by the Registrar, or the statutory due dates, or Kate Sears shenanigans absolves the Elections Office and the Registrar of Voters from their responsibility to enforce what is fair and ethical, and when boundaries of have been crossed. That is after all, their job.
The stated mission of the Office of the Marin Registrar of Voters, Elections Department, as noted on their web site, reads as follows:
The mission of the Elections Department is to provide a responsive, transparent, and professional approach to conducting elections that will inspire trust and confidence in our work and to promote the participation of all eligible citizens in the election process.
So you tell me, how truthful is Lynda Roberts being in her responses to the public? Did the Registrar of Voters show favoritism toward the incumbent?
In case you were wondering how Lynda Roberts got her job as the Marin Registrar of Voters, the answer is she was appointed by the Marin Board Supervisors.
Onward
In my opinion, Kate Sears’ tactics in this election, so far, have been on par with the worst we’ve been seeing in national politics. First, make unfounded allegations about your opponent’s character (to divert attention from your own failings), then falsely claim that we are in a dire crisis so the public will be afraid and feel they need you, and then simultaneously claim to be the only one who is telling the truth or who can be trusted (even though the truth is the exact opposite).
What Kate Sears wrote in her Candidate’s Statement is unethical and corrosive to the public’s trust. Just because someone can get away with something doesn’t mean it is okay that they do.
Section 20440-20444 of the California Elections Code contains the “Code of Fair Campaign Practices,” which asks each candidate to uphold the letter and spirit of the Code by taking a pledge. Among other things that pledge asks them to affirm are:
(1) I SHALL CONDUCT my campaign openly and publicly, discussing the issues as I see them, presenting my record and policies with sincerity and frankness,
(2) I SHALL NOT USE OR PERMIT the use of character defamation, whispering campaigns, libel, slander, or scurrilous attacks on any candidate or his or her personal or family life.
With all this in mind, the Marin Post has sent the following email to Kate Sears:
Dear Supervisor Sears:
As you know, the “Candidate’s Statement” that you filed with the Marin Registrar of Voters, a document that you created and approved, will soon be published in the Marin County sample ballot forms and mailed to every registered voter in Marin. Your original draft included language calling your opponent a “rookie” and inferring that your opponent was making “misleading charges” and “distorting facts.”
We have confirmed that the Marin Elections Office asked you to remove your defamatory remarks, inferring that Susan Kirsch was a “rookie,” because it violated the California Elections Code, and you have complied. However, expert legal counsel and many voters in Marin believe that the inflammatory and derogatory remarks that remain in your Candidate's Statement, continue to violate the letter and spirit of the Code, regarding what is allowable.
Please note that CA Code Section 13307(a)(1) states:
The statement may include the name, age, and occupation of the candidate and a brief description, of no more than 200 words, of the candidate's education and qualifications expressed by the candidate himself or herself.
In addition, Code Section 13308, states:
In addition to the restrictions set forth in Section 13307, any candidate's statement submitted pursuant to Section 13307 shall be limited to a recitation of the candidate's own personal background and qualifications, and shall not in any way make reference to other candidates for that office or to another candidate's qualifications, character, or activities.
Although your final draft will soon be distributed to the public in their Sample Ballot packages (the deadline for making changes has past), you can still do the right thing and disavow both of these statements and affirm the spirit of the Elections Code.
You can also do this by proactively affirming your commitment to a fair and ethical campaign by agreeing to sign the State “Code of Fair Campaign Practices” – a copy of which can be found at:
http://www.leginfo.ca.gov/cgi-bin/displaycode?sect...
Please tell us, Ms. Sears, will you agree to disavow the defamatory statements in your Candidate’s Statement, and sign and uphold the “Code of Fair Campaign Practices" pledge?”
If not, can you please provide us with an explanation for why not and how you can then reconcile the remarks in your Candidate’s Statement with the requirement of the Elections Code?
Sincerely,
Bob Silvestri
Editor – The Marin Post
We want to thank all those individuals who have sent us information and copies of emails that have helped us write this series.