San Jose measure falls short of signatures as mayor says it may violate First Amendment

Days after San Jose Mayor Sam Liccardo questioned the constitutionality of a controversial ballot measure, elections officials announced Friday the initiative fell short of a threshold of signatures needed to qualify for the November ballot.

After more than a year of intense public debate on the future of San Jose’s local elections, Liccardo — during a program on public access television earlier this month — said the Fair Elections Initiative, proposed by the South Bay Labor Council, may violate the First Amendment.

The fiercely contested ballot measure would move mayoral and City Council elections to presidential election years and prohibit campaign contributions from some real estate developers, landlords and businesses with city contracts — and their lobbyists. Proponents of the measure say it will increase voter turnout and help stop pay-to-play politics in the city.

On Friday, Silicon Valley union leaders said they “are looking into their legal options,” to overturn the Registrar’s latest announcement that their petition fell 2,248 signatures short of the required 69,024.

“It is clear from the nearly 100,000 signatures we gathered and polling data that there’s overwhelming public support to get special interest money out of politics and increase voter participation,” said South Bay Labor Council Executive Officer Ben Field in a statement Friday. “Since the beginning of this campaign, the City Clerk has mishandled the petition and the Registrar of Voters miscounted signatures. In the historical moment we are living, we need to amplify democracy, not keep rolling out bureaucratic failures that hold us back.”

Appearing on this month’s episode of Valley Politics, the mayor — who voted against putting the initiative on the ballot when the City Council considered it in 2019 — invoked the First Amendment for the first time when discussing the initiative publicly.

During the program, labor council executive board member Jean Cohen asked the mayor if he would support putting the measure on the ballot now that supporters have gathered 97,000 signatures from people who want to vote on the initiative. Cohen also referenced roughly 3,000 signatures that union leaders say were “lost” by city officials who delivered them to the Registrar of Voters this spring.

Cohen said the initiative would “allow more people to select the next mayor,” and “ban wealthy special interests from donating to mayor and council races.”

At first, the mayor bristled at Cohen’s phrasing — “that’s an interesting and loaded question,” Liccardo began. Eventually, the mayor said he wouldn’t support the initiative if the council voted on the measure again — but not before he raised the possibility that it was unconstitutional.

“I suspect there is a real First Amendment problem with the measure,” Liccardo said on Valley Politics.

The mayor could be right, said First Amendment Coalition Executive Director David Snyder.

It is true that “the expenditure of money on campaigns is generally considered protected speech” by the Supreme Court — but Snyder told San José Spotlight he doubts the initiative violates the First Amendment.

“If this is coming out of the blue, then that suggests that this is not a real issue,” Snyder said.

In the past, the mayor and his allies on the City Council have said they opposed the measure because they feared presidential elections would overshadow local races. Other opponents, including The Silicon Valley Organization — the local chamber of commerce — have said the measure unfairly restricts campaign contributions from business owners and lobbyists, but not unions.

“The proposed measure would … ban certain special interest campaign contributions, while exempting labor unions from the new rules,” Matt Mahood, CEO of the organization told San José Spotlight in February.

Now, Liccardo seems to be using that argument to bolster his claim that the measure may violate the First Amendment.

“We’re pretty concerned about the constitutionality of the measure,” Liccardo said during the program. “There’s a lot of concern about the measure and how it decides who can contribute to a campaign and who can’t. A small business owner who wants to contribute to a campaign may be barred, but a union who wants to contribute thousands and thousands of dollars can do so under the measure.”

Without a “sophisticated legal analysis” of case law including Buckley v. Valeo and Citizens United v. FEC, Snyder said it is difficult to know whether a court would agree with Liccardo. But, Snyder added, it seems unlikely that the initiative would have advanced this far without a lawyer for the city — including Liccardo — raising the question before.

“If this was a real issue it would have come up before now,” Snyder told San José Spotlight. “It would have been front and center in the debate.”

Getting the measure on the ballot has been a rollercoaster. Despite a poll last year finding that 80 percent of those surveyed supported the measure, San José Spotlight reported in March that the measure fell short the required 65,573 signatures and failed to qualify for the ballot. Labor leaders accused officials of losing some 2,000 signatures.

The Registrar’s office admitted to making mistakes and filed a lawsuit to require San Jose to pay for a full recount — a cost of $1 million. A judge ordered a full recount last month, leading to Friday’s announcement that the measure still fell short.

“The City Council should do the right thing, place the Fair Elections Initiative on the ballot and let the people of San Jose decide for themselves if they want to keep big money out of politics and uplift democracy,” Field added.

Contact Adam F. Hutton at [email protected] or follow @adamfhutton on Twitter.