Legality Used to Disqualify Mall Petitions

City Hall thwarted the latest ballot drive to halt the Buenaventura Mall expansion by invoking a rarely enforced legal technicality that disqualified nearly a fifth of the signatures favoring a referendum.

City Clerk Barbara J. Kam instructed county election officials to set aside signatures collected by people who failed to register as voters in the city--a state legal requirement for petition circulators.

Those instructions do not conform to the county’s standard practice of counting signatures for ballot measures, and they ignore the advice of the secretary of state.

“The voters have no way of knowing if a circulator is registered in that jurisdiction and so they shouldn’t be disenfranchised because somebody else made a mistake,” said Alfie Charles, spokesman for Secretary of State Bill Jones.

Yet Ventura is well within its legal rights to hold signature-gatherers to the letter of the law, City Atty. Peter Bulens said. He said he carefully researched legal cases before the city issued its precise instructions on how to determine if the referendum would qualify for the ballot.

“The elections code is very clear,” Bulens said. “The circulator has to be a registered voter in the jurisdiction in which the petition is circulated.”

To allow otherwise, he said, “gives an implication that circulators and signature-gatherers can violate the elections code with impunity.”

Ventura County’s assistant registrar of voters, Bruce Bradley, said he is not sure about the city’s legal footing. “You can get very good lawyers to argue this both ways,” he said. “The city feels that they have the moral high ground, but I’m not sure if they have the legal high ground.”

Eric Lambert, manager of the campaign fighting the mall expansion, said his group may take the issue to court. “We are going to look into challenging it on that front, if we have a leg to stand on,” he said.

Counting the extra signatures, Lambert said, the referendum would have easily qualified for the ballot, requiring the City Council to rescind approval of a tax-sharing deal with the Buenaventura Mall developers or hold a special election asking voters to decide the issue.

But following city instructions, county election officials determined that referendum organizers fell short of the needed 5,999 signatures.

Although the group turned in 8,715 signatures, only 4,793 were considered valid because a sample showed that nearly 26% of signers were not registered voters in Ventura and another 20% were collected by circulators who were not properly registered.

If the city’s decision is challenged in court, it could clear up a fuzzy area of state election law. Although the law clearly requires a person collecting signatures to be registered to vote in that jurisdiction, the law does not address what should be done with valid signatures collected by a person who fails to follow the rules.

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Furthermore, the case would highlight questions about big business making use of a referendum law that was intended as a means for ordinary citizens to petition the government.

The anti-mall campaign, which calls itself Citizens Against the Sales Tax Giveaway, is bankrolled and largely directed by the owners of Oxnard’s competing mall, The Esplanade. Sears and Robinsons-May have agreed to move from The Esplanade to Buenaventura Mall if the $50-million expansion goes through.

To collect signatures for the referendum, the campaign used a combination of volunteer and paid signature gatherers, some of whom said they received as much as $3 for each signature.

Kelly Kimball, who runs a successful signature-gathering firm, said he insisted that all of his professional circulators follow the law and register to vote in Ventura while they were passing around petitions.

His internal verification process showed that there were sufficient signatures to qualify the referendum for the ballot, and Kimball believes the city has made an error by not counting the names on some petitions.

“My advice to the client is that they have a wide-open door to challenge this in court and they should do so,” Kimball said.

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Craig Scheidt, a San Francisco-based representative of The Esplanade’s owners, was unavailable for comment Wednesday.

The courts have issued a variety of rulings in this area, but Ventura City Atty. Bulens said the highest rulings--those from the state Court of Appeals--favor the city’s position.

The appellate courts have ruled, he said, that once election officials have evaluated signatures to determine their validity, they cannot go back and toss out the signature-filled petitions of any circulator who failed to properly register.

“We did not do that,” Bulens said.

Instead, the city specifically instructed election officials to first set aside any petitions from nonregistered circulators before determining the validity of any signatures.