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The wording of the Official Ballot, Kootenai County, Idaho, School District 271 Supplemental Maintenance & Operation Levy Election has drawn criticism from many voters. Some voters felt the wording was clear, while others called it confusing. Some even called it deceptive and manipulative. Was the problem in the wording or in the intention of those who composed the ballot measures?
It was the responsibility of the School District 271 Board of Trustees to compose and approve the final wording of the official ballot. The Board was free to consult with school administrators and its own legal counsel. It was the Board’s responsibility to ensure the ballot was “legal,” meaning in compliance with applicable state statutes. I have not found an Idaho Code section that refers specifically to ballot form and wording for school levy elections, however Idaho Code § 34-1810 seems applicable in principle. It was not the duty or responsibility of the Kootenai County Clerk or his Elections Office staff to compose the content of the ballot.
There were two separate but similarly worded levy options on the ballot. While they were separate, the School District’s apparent intention was that Option #2 could not pass on its own. Option #1 had to pass, otherwise Option #2 could not. That was the impression left at the end of Option #1 with the wording, “If Option 1 fails, Option 2 cannot pass.” Then, text below the Yes-No vote blocks for Levy Option #1 instructed voters, “If you voted ‘no’ on Option 1, stop here.” In other words, the ballot instructed voters to not vote on Option #2 if they had voted “NO” on Option #1.
That wording by itself would lead voters to reasonably conclude if they voted “NO” on Option 1 and followed the ballot instructions to not mark either “YES” or “NO” on Option 2, they would not be casting any vote for or against Option #2. The School District’s Board of Trustees had a different idea. Their expressed intent was a “NO” vote on Option 1 would automatically be counted as a “NO” vote on Option 2. How do we know that? Because the School District explicitly said that in its March 9, 2011, Press Release: “Had the Coeur d’Alene School District conducted the election as it had for decades, the district would have counted a no vote in Option #1 as an automatic no vote in Option #2.” [emphasis added] That was not clearly stated on the ballot so the voters could understand it.
Apparently, the School District’s Board of Trustees expected that the Kootenai County Elections Office would accept that each “NO” vote on Option #1 would automatically be tabulated by the Elections Office as a “NO” vote on Option #2. Had the Kootenai County Clerk and his Elections Office staff gone along with that, I believe they would have been in violation of Idaho Code 18-2309, Idaho Code 18-2310, Idaho Code 18-2311, or all three. Those are felonies.
Moreover, what if a voter had voted “NO” on Option #1 but then ignored the “stop here” instruction and voted “YES” on Option #2? How would that vote have been counted? Clearly the intent of the voter was to vote “YES” on Option #2, yet if the Kootenai County Clerk and his Election Office staff had followed the intent of the School District’s Board of Trustees, the vote would have been counted as a “NO” vote. I believe that would have been a violation of Idaho Code 18-2311 just as if the Elections Office staff had erased the voter’s “YES” vote and then marked an “X” in the “NO” box.
But would any voter reasonably vote “YES” on Option #2 after voting “NO” on Option #1? Sure, why not. The explanation of Option #2 on the ballot begins, “If Option #1 passes …”. A voter could reasonably not want Option #1 to pass and vote his desire (“NO”) on Option #1, yet conclude, “But if it does pass even though I don’t want it to, then I also want Option #2 to pass.” He could then put an “X” in the “YES” box on Option #2. The ballot instructions, if followed, deprived him of that vote.
It appears to me the Trustees wanted both Option #1 and Option #2 to pass, but they did not want Option #2 to pass unless Option #1 also passed. Consequently, I believe they chose to word the two options in a way they felt would be most likely to achieve their intent. Unfortunately, their chosen wording may have resulted in votes being cast but not counted in accord with the intent of the voters who cast those votes. It is the intent of the voter as reflected by how he marks his ballot, not the intent of School District 271 Board of Trustees, that should prevail. As a voter, I simply do not want the Kootenai County Clerk and his Elections Office staff to infer the existence of a mark on my ballot where I made no mark!
It appears to me that the Kootenai County Clerk and his Elections Office staff did everything they could to conform to the letter and the intent of Idaho’s election laws. That was their job.
The Board of County Commissioners of Kootenai County are statutorily the Board of Canvassers for School District 271’s elections. The canvass for the March 8, 2011, School District 271 Supplemental Maintenance & Operations Levy Election is scheduled to be held in a public meeting of the County Commissioners on Tuesday, March 15, 2011, at 2 p.m. in the 3rd floor Board Room at the Kootenai County Administration Building, 451 Government Way, Coeur d’Alene, Idaho.
Why is this an issue now? When the County ran the last sales tax proposal last year, it was worded similarly (if I recall correctly): If Option 1 authorizing the sales tax passed, then you could vote on Option 2 for the bond to be funded by Sales Tax plus property tax relief. If you didn’t vote Yes on Option 1, you couldn’t vote Yes on Option 2. The School District did something similar and now everyone is all verklempt about it.
Of course, the County’s sale tax proposal failed.
Comment by Dan — March 12, 2011 @ 5:45 pm
I wondered why the district wouldn’t just let people vote a straight Yes or No on each question. Now I realize it’s all been about the emergency levy! THAT’s why the school district went through such contortions with the wording on the ballot. If the first part of this levy had failed and the second part had passed, the district could not come back to the voters later with an emergency levy. That was their safety net and they didn’t want to chance losing it.
The first part was 12 million, the second part was 5 million. They couldn’t risk having people vote only for the 5 million. But if the whole thing failed, they could have come back again with an emergency levy.
I wonder why Hazel Bauman didn’t come clean with this reason when she spoke to the news people after she knew both parts of the levy passed?
Comment by mary — March 12, 2011 @ 7:18 pm
Dan,
It’s an issue now because the effort by the School District’s Board of Trustees to try and get the County Clerk and his Elections Office staff to count non-votes as “NO” votes appears to be blatantly illegal. Not that our prosecuting attorney will do anything about it, you understand. Wouldn’t want to upset someone’s applecart. And now we clearly have a County Clerk who is trying to stand up for the law to protect everyone. That is going to upset some judges and other elected officials who are dead-enders here.
Comment by Bill — March 12, 2011 @ 7:36 pm
Mary,
For some of the discussion that took place in the public meeting, see page 2 of the minutes of the December 6, 2010, Board of Trustees meeting. Also see page 3 of the minutes of the January 10, 2011, Board of Trustees meeting. These help explain how the Board of Trustees arrived at dollar amounts. However, the public meeting minutes I’ve reviewed do not reflect the Board of Trustees intended to word the ballot in a way that would cause voters to understand the Trustees’ specific intent on marking and counting ballots.
What truly bothers me is revealed in the March 9, 2011, press release by Laura Rumpler, Office of Communications & Public Information.
Comment by Bill — March 13, 2011 @ 7:31 am
Most of the discussion on this ballot issue seems to miss the point. It appears the two part structure and wording of the ballot that the SD crafted was legal according to the letter of the law. The County Elections officials had no choice but to tabulate the vote count the way they did, ie, not count the NO votes from Part 1 as No votes on Part 2. That means the Part 2 levy could have “legally” passed with only 50% +1 YES votes from only the voters who voted YES on Part 1 while excluding the Part 1 NO voters completely. In other words, Part 2 could have “legally” passed with much less than 50% of the “total” voters saying YES. In theory, lets say a total of 10,000 people voted and 5001 voted YES on Part 1 and 4999 voted NO on Part 1 with the expectation they were also voting NO on Part 2. So Part 1 passes. Now of the 5001 YES voters on Part 1 who were allowed to continue on and vote on Part 2, 2501 vote Yes and 2500 vote NO. Part 2 “legally” passes with a total of 2501 YES votes. Despite what the SD is saying their intent was after the fact, we will never know what would have happened if it had gone the other way and played out according to the above scenario. They could still legally take the Part 2 levy dollars. I can’t imagine they actually would.
It is essentially a loophole around the 50% + 1 rule. It is interesting that there doesn’t seem to be any clearly “written” record of the fact that they were counting Part 1 NO votes as Part 2 NO votes from all the articles and presentations from prior to the election. Everything I have seen is carefully worded to follow the “if you Vote No on Part 1 you’re done, Part 2 cannot pass unless Part 1 passes” script. I don’t know what was verbally said at the presentations. The “Part 2 cannot pass unless Part 1 passes” language seems to be the rationale they use to say that a Part 1 NO vote also counts as a Part 2 NO vote even though legally it did not. Maybe I missed some of the written record, but I never saw it clearly stated. Only their implication that since Part 2 cannot pass unless Part 1 did, it means by default that all Part 1 NOs counted as Part 2 NOs, which wasn’t technically the case. This needs to be addressed in the election law so it can’t happen again.
Comment by cdaresident — March 15, 2011 @ 4:48 pm
cdaresident,
That’s a good analysis. It is a plausible explanation for the School District’s motive in wording the two options the way it did. If, as you suggest, the School District Board of Trustees and Superintendent agreed to this for the purpose of increasing the chances of Option #2 passing by limiting the pool of voters to those who voted “YES” on Option #1, voters more likely to vote “YES” on Option #2 because the voted “YES” on Option #1, then their conduct may have amounted to a fraud intending to hinder a voter from casting his vote. If that were the case, then it would adequately be covered by existing election law (I.C. 18-2305). Often the existing laws are adequate, they just aren’t enforced and prosecuted.
Comment by Bill — March 15, 2011 @ 7:39 pm
You know, at the levy meetings, it was consistently explained by Hazel that a “No” vote on Option 1 would be counted as a “No” vote on Option 2. I don’t know where the disconnect took place because, honestly, no one at the SD office is apparently talking to anyone in the public.
Comment by Dan — March 15, 2011 @ 8:21 pm
If as Dan suggests, it was clearly stated verbally at the presentations that the Part 1 NO votes would count as as Part 2 NO votes, I don’t see how they could have ethically turned around and not honored that pledge if had gone against them by counting them. However, if they only implied that to be the effect of the “Part 1 must pass first” rule then they never clearly stated it. My point
is that it sounds like “legally” they would still have the option to take the Part 2 levy. I’m sure the outcry and lawsuits would be tremendous if they tried to do that. I assume a Levy that passed “legally” under those circumstances could always be ignored and not implemented by the SD if it happened to pass “legally” but not “intentionally” so to speak. Again maybe I missed something,
but it makes no sense to me that even the reporting in the paper didn’t actually state that was how it would work based on what they were hearing at the presentations. Please point me to the article/presentation if I just missed it.
Comment by cdaresident — March 15, 2011 @ 9:34 pm
cdaresident,
In my opinion there is a real question about the legality of the school district making the representation that a “NO” vote on Option #1 would automatically result in a “NO” vote being counted from that same ballot on Option #2. The election had to be administered according to state law, and state law would forbid the County Clerk from counting an unmarked ballot option (in this case, Option #2) as if it had been marked “NO” by the voter. I realize that the SD 271 Board of Trustees and Superintendent believe they have the authority to override state law, but they don’t.
Also, you suggested changes are needed in the state’s election administration laws. Legislation has been introduced, H-0275, to make some changes. Please take time to read it (here is a link), then send comments to Representative Kathy Sims.
Comment by Bill — March 16, 2011 @ 6:43 am
Dan,
When it comes right down to it, the only wording that counts is the wording on the ballot. The ballot wording must be clear and unambiguous and understandable on its own. What Bauman or anyone else says in meetings is pretty meaningless except to try and persuade. In this levy election, the ballot did not expressly state that if the voter voted “NO” on Option #1, then a “NO” vote would automatically be counted on Option #2 as if the voter had put an “X” in the “NO” box himself. Arguably, the ballot wording, “If you voted ‘no’ on Option 1, stop here,” suggested just the opposite, that if the voter marked the “NO” box for Option #1, his vote on Option #2 would not be counted.
Cdaresident has made a very good argument for the possibility that with its ballot wording the School District intentionally tried to skew the results of the vote on Option #2 by implying that only those voters who voted “YES” on Option #1 would have their votes counted on Option #2. The presumption would be that those who voted “YES” on Option #1 would be more likely to also vote “YES” on Option #2. Even if that wasn’t the School District’s intent, it may well have been the outcome.
Comment by Bill — March 16, 2011 @ 7:01 am