Long May They Reign

East Bay lawyer earns state leaders Don Perata and Fabian Nuñez a chance to stay in power — by the hair of their chinny-chin-chins.

Robin Johansen just saved Don Perata‘s ass. The state Senate boss was on his way to being kicked out of office because his term-limits extension initiative had failed to gather enough signatures to qualify for the February election. And then the San Leandro attorney got to work.

Late last month, Johansen, known as one of the shrewdest political campaign lawyers in California, began calling county election officials days before the statewide ballot deadline. She asked them to conduct what amounted to highly selective recounts, rechecking only a handful of signatures that had been ruled invalid. As a result, the term-limits petition gained just enough signatures to squeak by.

Campaign finance records show the term-limits campaign paid Johansen’s firm $89,415 in the first six months of this year. It was money well spent.

Perata, who also hired Johansen’s firm for his 2000 re-election campaign, now has an excellent shot at remaining Senate president pro tem for four more years. His colleague, Assembly Speaker Fabian Nuñez, who cosponsored the initiative, has a chance to command the lower house for another six.

Although the lawyer’s meddling was apparently legal, some political watchdogs are crying foul because the recounts could only have helped the measure’s backers, and worked against its opponents.

And that is exactly what happened. Following checks of a handful of signatures, elections officials in four counties — Alameda, Contra Costa, Riverside, and San Bernardino — changed five of them from invalid to valid, giving the petition exactly what it needed to make the ballot.

For some, it was reminiscent of the Bush-Gore debacle in 2000, when the US Supreme Court halted a thorough recount in Florida after selected ballots showed Bush had won. Doug Heller, executive director of the Foundation for Taxpayer and Consumer Rights, a Santa Monica-based liberal consumers’ watchdog group, called the move unfair and unethical. “It’s as if one candidate asks for and gets a recount, but only of ballots he chooses,” he said. “It’s subjective and partisan — subjective because they chose to not recount all the signatures, and partisan because they did it at the request of one side’s lawyer.”

To understand how Johansen knew which counties to call and what to ask for requires a quick lesson in how petitions become statewide measures in California.

To qualify, the term-limits backers needed 763,790 signatures. At first, it seemed they would make it easily, since the raw count totaled 1,105,511. But as county elections officials from around the state began verifying signatures, they calculated that hundreds of thousands were invalid.

Johansen, who did not return phone calls seeking comment, likely would have learned this from the secretary of state’s office, which e-mailed regular updates of the count to anyone who asked. By reviewing the updates throughout August, it would have become clear to Johansen that her measure was in danger of coming up short — unless she could get some signatures changed.

Elections officials categorize invalid signatures as either “not sufficient” or “duplicates.” The former category includes signatures that don’t match those on file, or signatures from unregistered voters. Duplicates, a much smaller category, occur when someone signs the same petition twice.

County elections officials are not required to verify every last signature. Instead, they randomly select 3 percent, or five hundred signatures, whichever is greater. In Alameda County, it took six days for eight clerks to verify that 3 percent, in this case 2,257 signatures, elections spokesman Guy Ashley said.

Because a relatively small sampling of signatures is checked, each represents many others. So if Johansen could get just a handful of invalid signatures changed to valid, it would add thousands to her campaign’s total.

Johansen’s best move was to convince county election officials to recount duplicates, because there were so few — only 125 statewide. (To view the secretary of state’s spreadsheet, see our blog, 92510.)

By contrast, there were more than eight thousand “not sufficient” signatures, too many for elections officials to recount in a timely fashion. Only the measure’s opponents, meanwhile, would want a recount of valid signatures, because it could result in a lower count.

In late August, after most counties had sent their official results to the secretary of state, Johansen called Stephen Weir, longtime top election official for Contra Costa County. According to Weir, she said, “We’re checking counties to see if the duplicates are really duplicates. Would you mind checking yours?” She added that other counties had noted that some of their duplicates weren’t duplicates.

Because Contra Costa had only one duplicate, it would be simple to recheck. Weir, who has a reputation for being a straight shooter, said he decided to do so, and, lo and behold, found that the signature had been improperly invalidated.

He explained that when that person originally signed, he or she was not registered to vote, so the signature was tabulated as “not sufficient.” But the person had then registered before signing again. Consequently, the second signature should have counted as valid.

That signature made all the difference. Moving it to the “valid” category earned the petition the equivalent of 1,111 additional signatures — the measure qualified for the ballot with just 957 signatures to spare.

Nicole Winger, a spokeswoman for Secretary of State Debra Bowen, said it was uncommon for counties to change their signature verification results after certifying them as final and submitting them to the state, but she wasn’t sure whether it had happened before. Weir couldn’t remember ever having changed results during his eighteen years with Contra Costa County, nor could he recall a member of a political campaign ever asking for a signature recount.

It’s unclear how many counties Johansen called. Ashley insisted that Alameda County received no calls from her or anyone else in the campaign. He said the county decided to recheck its duplicates — but not any of the other categories — on its own. Ashley added that the county usually recounts duplicates before sending its results to the state, but failed to do so in this instance.

Neither Riverside nor San Bernardino elections officials returned phone calls, but a Riverside official told the San Diego Union-Tribune that it also chose on its own to recount its duplicates — and no others — after sending them to the state.

However, Brett Rowley, a spokesman for the Orange County Registrar of Voters, said his office received calls from Los Angeles County elections officials about its duplicates and whether it was recounting them. Orange County did not change its results after certification, while Los Angeles County was among the last to file its results. Marcia Ventura, a spokeswoman for the Registrar of Voters in Los Angeles County — Nuñez’ home turf — said her office is unaware of any calls to Orange County.

Regardless, Johansen’s manipulation of the electoral process fits hand-in-glove with the measure itself, a cynical proposition if there ever was one, purposely worded to trick California voters.

Term limits, you see, are very popular. An August Field Poll showed that 70 percent of state voters approve of them. Perata learned this lesson the hard way — in 2002, the electorate soundly rejected his first attempt to alter term limits. So earlier this year he and Nuñez devised a plan to market their new initiative as one that toughens term limits, when it actually relaxes them for incumbents.

Current law limits legislators to fourteen total years in office — six in the Assembly and eight in the Senate. This measure would lower the total to twelve, but would let legislators serve all their years in one house. It also contains a grandfather clause for current incumbents.

In other words, if the measure passes, Perata can run for reelection for another four-year term even though he will have already served a total of twelve years in the Assembly and the Senate.

And none other than the senator’s old pal, Attorney General Jerry Brown, helped to ensure that the voters will be fooled. Earlier this year, the former Oakland mayor wrote the official ballot statement, which highlights the measure’s reduction of total years, but downplays the grandfather clause. US Term Limits, a national term-limits advocacy group, sued over the language, calling it misleading, but a judge ruled in Brown’s favor.

So what can the measure’s opponents do? Apparently not much. Perata and Nuñez’ plan to hoodwink voters seems to be working. Last month’s Field Poll showed the measure was gaining traction precisely because voters saw it as strengthening term limits. The poll, conducted during the state budget stalemate, even suggested that the angrier voters were with the Legislature, the more likely they were to support the measure.

California law, meanwhile, appears to prohibit opponents from doing anything about Johansen’s phone calls. Nor can a measure’s foes demand a recount of the “valid” signatures — even though it stands to reason that if clerks made mistakes with the duplicates, they likely made mistakes in the other categories, too.

Finally, the law prevents opponents from doing their own full recount. Only a measure’s backers are allowed to review signatures — and only when their measure fails to make the ballot. Opponents, or any other member of the public, are forbidden from ever looking at them.


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