Last week’s post on the ongoing saga regarding California’s Water Bond did not discuss the June 26th deadline for the California Legislature to find a substitute for the $11.14 billion water bond on this November ballot. What are the Legislature’s options? There are many.
Was the June 26th deadline firm?
The California Legislative Calendar includes the following statement regarding June 26:
“June 26 Last day for a legislative measure to qualify for the Nov. 4 General Election ballot (Elections Code Sec. 9040)”
Section 9040 of the California Election Code states (in its entirety):
“9040. Every constitutional amendment, bond measure, or other legislative measure submitted to the people by the Legislature shall appear on the ballot of the first statewide election occurring at least 131 days after the adoption of the proposal by the Legislature.” (emphasis added)
Any bond measure passed by the California Legislature in August and included on the November 2014 ballot would fail to meet the requirement that it “appear on the ballot of the first statewide election occurring at least 131 days after adoption of the proposal by the Legislature.”
What Gives on the Deadline?
The simple answer is: any legislation passed for a new water bond must address the deadline in Section 9040 of the Election Code. The most direct approach would be for the Legislature to waive the requirements of Section 9040. (A technical issue would be assuring that the effective date of the statute precedes the November 2014 election.)
Such a waiver would solve the problem created by the inability of the Legislature to meet the current statutory deadline for placing a new water bond on the November 2014 ballot. As a matter of general public policy, this approach is not attractive. If deadlines can be waived, this diminishes the important role of deadlines to provide incentives for parties to make concessions in order to reach a deal. Cans that can be kicked down the road get kicked down the road.
In addition, there are practical considerations. As Jeremy White of the Sacramento Bee notes, “elections are complex undertakings.” http://www.sacbee.com/2014/07/05/6536142/california-water-bond-the-burning.html#storylink=cpy “The secretary of state’s office has begun assembling the voter guides that must go on public display by July 22 before being printed and mailed to voters. County election officials typically start ordering ballots to be printed in August. Those ballots have to be translated into nine other languages.” (emphasis added)
Yikes. These practicalities may be the reason for the minimum 131 day requirement in the Election Code. Further, if the Legislature does not act until August (as currently contemplated), then a second ballot and voter’s guide must be prepared.
Legislation could (i) remove the $11.14 billion bond from the November 2014 ballot and (ii) pass the substitute bond without a waiver from Section 9040 of the Election Code.
Under this approach, there would be no water bond on the November 2014 ballot. Given that the legislation would be passed in August, there would still be a second ballot—the initial one with the $11.14 billion water bond removed. This would be a simple deletion from the initial ballot.
The substitute bond would be placed on the ballot of the next election. This would avoid the bad precedent of waiving Section 9040 of the Election Code. It would also avoid the inevitable problems of drafting ballot materials for the new water bond under compressed schedules. Unless the water establishment finds a kumbaya moment in August, poorly-drafted ballot materials should provide gist for litigation before the election (regarding the accuracy of language) and after the election (how inevitable inconsistencies and ambiguities be resolved).
What about the consequences of further delay of a water bond? If the Legislature passes a new bond measure in August, they have moved the ball forward, although they missed the deadline for the November 2014 ballot.
Given the head winds facing voter approval of water bonds given current debt levels, it behooves the California water establishment to have a compelling “product” for voters. As mentioned in my prior post on the California Water Bond, the history of voter approval of California water bonds suggests that even Governor Brown’s bond size ($6 billion) has only a 20% chance of approval. To increase the odds, either the new water bond needs to be scaled back further or the water establishment is betting on the drought convincing voters that more state funding is needed. In that very little of the activities funded by the water bond would address short-term water conditions, the “narrative” must have a “high spin rate.”
California’s water situation requires decisive and incisive leadership from the Governor, Legislature and the water establishment. It has been five years since the Legislature passed the bond measure for the $11.14 billion water bond. Shying from reopening the provisions or facing two election cycles, the Legislature has “kicked the can down the road” by deferring judgment day from voters. The inability to meet the statutory deadline stated in the Election Code shows how difficult the politics remain for a water bond. The next few weeks will test whether California has the leadership to address its water problems.