There are many good reasons for disqualifying the Ross Vallley flood fee election. However, MUTA's lawsuit concentrates on the most egregious of them, namely, that many property owners were denied their fundamental right to vote, in violation of Prop. 218 (Articles XIIIC & XIIID of the California Constitution).
• The Constitution requires that all property owners (plural) vote on such measures, but the Public Works Department, managing the election, decreed that there would be only one ballot per parcel. Thus in jointly or multiply owned property, only one partner or spouse could vote, with the other(s) illegally denied the right to vote.
• Not only that, many voters to be taxed did not receive ballots at all—in some cases possibly because an outdated voter list was used. (A ballot in one case was mailed to an address the voter had left nine years ago!)
• Some parcels were exempted from payment of the flood tax, even though some had drainage runoff footprints larger than many of the taxed parcels and contributed more to the flood damage than did ordinary residences.
Other flaws in this badly flawed election included:
• A repugnant conflict of interest existed in that
Supervisor Hal Brown served as both "prosecutor,
judge and jury"—chief advocate for the flood fee election,
and a judge who votes to certify it as valid.
• Another egregious conflict of interest existed in that the Department of Public Works, put in charge of managing the election, was also the agency in charge of engineering studies to determine the drainage run-off footprint of each affected property, and thus was the taxing agency to determine the amount of the penalty tax for each.
• To be a "benefit fee" requires that each property receive its particular benefit, with the fee calculated proportionally to the dollar value of that benefit. What we have in this recent election is not a benefit fee, but a penalty tax, a "special purpose tax," with the tax amount calculated proportionally to the area of a property's individual drainage run-off footprint. As a "special purpose" measure for the single purpose of providing funding to pay for alleviating drainage run-off flooding in a specific part of the Drainage and Flood Control District's drainage system, it is a "special tax" and thus requires a two-thirds vote. But this election was settled by a simple majority vote.
• The measure is also a "special purpose" measure in that it applies only to private properties, exempting all public properties which together have a vast combined—but untaxed—drainage run-off footprint. Thus private property owners are further penalized by being charged (penalty-taxed) for control of the run-off share of damage caused by the exempted public properties, in addition to being taxed for their own run-offs.
• Hiring an outside consultant to design the ballot, instead of using the County's Elections Office, resulted in a process violating the time-honored concept of the secret ballot. The lack of secrecy left those who voted "no" possibly subject later to hateful opprobrium from those who voted "yes."
• The ballot designer produced a flawed ballot design in which the instruction to sign the ballot was on a different page from the signature, and in a small, unobtrusive type font that the aging eyesight of elderly voters easily could have missed; and it resulted in an astonishing 21 percent (compared to usually about one percent) of votes received being disqualified, almost all due to lack of the voters' signatures. This huge 21 percent election "failure rate" alone should be sufficient reason to throw out this gravely flawed election.
• With no EIR, voters approving the measure were giving what amounted to a blank check to be spent by those managing the election. With all those flaws, how do you imagin the Public Works Department will manage the money for this project?
When one considers the totality of the above shortcomings— • many voters illegally denied their right to vote, • the discrepancy between what the Supervisors approved and what the Public Works Department actually included in the purposes for which the money would be spent, • the separate conflicts of interest of both Supervisor Hal Brown and the Public Works Department, • flawed design of the ballot, and • the three reasons the miscalled "fee" is actually a "special tax" that required a two-thirds vote, it is clear that simple justice demands that the subject Ross Valley election be disqualified.
Yet there was one more astonishing flaw, frightening for its irresponsibility, in that the Board of Supervisors went ahead with their 4-0 vote to certify the election despite the unprecendented huge number of ballot rejections, 21 percent of votes cast—an astronomical two thousand percent (2,000%) above the usual one percent in Marin elections.
Can you imagine people in any field of human endeavor—other than irresponsible politicians—being satisfied with a 2,000% variation from the accepted norm and calmly ignoring it in favor of considering it business as usual?