Let's take a look at the elections code.
Cal. Elec. Code sec. 9107 provides as follows:
"The county elections official shall ascertain the number of signatures required to sign the petition by obtaining the number of votes cast within the county for all candidates for Governor at the last gubernatorial election preceding the publication of the notice of intention to circulate the initiative petition." [Emphasis added.]
Based on the California law, ASA-NC needs 20% of that number of votes cast for all candidates for Governor in the last race.
According to the records of the Nevada County Elections office and in 2010 (the last gubernatorial election), the number of votes cast for all candidates for governor was 45,657. Therefore clearly, ASA-NC needs signatures representing 20% of 45,657 which is 9,131.
Now, this is where things get weird and in fact downright dumb.
Gregory Diaz, the elections offical, states that ASA-NC needs to obtain signatures representing 20% of all votes cast for all candidates for Governor in 2010 PLUS signatures representing 20% of all votes not cast for any candidate for Governor in 2010. It is so clear and obvious that this interpretation is mistaken and erronoeous that there has to be something deeper at play. Thankfully, The Union is also onto this erroneous interpretation as is seen here and here.
So what is going on? Well, this erroneous interpretation is directly attributable to a mistake made by Gregory Diaz in 2011 in connection with the judicial recall petitions as discussed here.
The number of signatures required, which the county elections office provided, was inaccurate. The recall of trial court judges is specifically provided for in Article II of the California Constitution.
Subdivision (b), section 14 of Article II provides that the signatures required for recall of a trial court judge would be 20% of the number of votes for that judge in the most recent general election. When the judge runs unopposed and therefore does not have her name on the ballot [Cal. Elec. Code § 8203(a) and as happened in Nevada County], the amount of signatures must be 20% of the votes cast within that judicial jurisdiction for the countywide office which had the least number of votes in the most recent general election [Cal. Elec. Code § 11221(c)(1)]. The only countywide office in the most recent general election was the office of Treasurer/Tax Collector in 2010. The total number of votes cast for that office was 38,354.
So the required number of signatures for the judicial recall should have been 7,671, which is 20% of 38,354.
However, the number of signatures needed to recall the judges, as provided by Gregory Diaz, was 9,927. So, what gives?
If Gregory Diaz always counts "under votes" (votes not cast for any candidate and in contravention to California law) in his calculations, the required number of signatures to approve the recall would have been 20% of the votes cast for treasurer in 2010 (38,354) PLUS the number of votes not cast for either candidates for treasurer in 2010 (11,270). Based on math, 20% of 49,624 is 9,925. There is a difference of two - but why - after all it is math and math does not lie. There were only 7 "over votes" (voters that voted for both candidates) which (as usual) equals only 0.01% of the total vote.
This number provided by Gregory Diaz was 9,927 which just so happens to be exactly and precisely 20% of the total votes cast in November 2010, and there is the mistake. Gregory Diaz failed to apply the law correctly in 2011 in connection with the number of signatures required for judicial recalls, and he is covering for it now with an absurd interpretation of California law much to the detriment of ASA-NC.
In the 2010 gubernatorial election, there were only 14 "over votes" which (as usual) represented only 0.03% of the total votes cast. When we are dealing with hundreds of a percent, it is easy to hide your mistakes to the layman, but for someone with experience in election law that can add it is not difficult to figure it out.
If the legislature intended recall petition and ballot intiatives to be qualified by a percentage of votes for an officeholder PLUS all of the under votes for such office, then the legislature would have just made qualification based upon the total number of votes cast in any given election, because the number of "over votes" rarely exceeds 0.05% of the total vote in a given election.
The long and the short of it is this...nothing will ever come of it.
Regardless and whether or not correct, Gregory Diaz will accept and certify the number of signatures submitted by ASA-NC in an amount exceeding his stated requirement of 9,923 signatures. Gregory Diaz will allow the pot initiative to go on the ballot in order to avoid litigating the issue over the amount of signatures required to qualify the initiative.
The only way the signature issue is dealt with correctly and legally is if someone challenges ASA-NC's petitions and the final number of qualified signatures lands directly between 9,131 and 9,923.
It is a safe bet for Diaz to cover his "you know what" knowing that the likelihood of someone challenging the petitions is slim and knowing that if a challenge does happen the result will likely not end up between 9,131 and 9,923. At this point, the whole analysis is academic, and the truth will never see the light of day. As always, so goes the affairs in the Nevada County Elections office..."Like sands through the hourglass, so are the Days of our Lives."
Editor's Note: NEITHER A SINGLE COUNTY NOR THE STATE OF CALIFORNIA COUNTS VOTERS THE WAY DIAZ IS ADVOCATING. The California Secretary of State follows California election law and does not count under votes when calculating the required number of signatures for a ballot initiative. In 2010, the total number of votes cast for all candidates for Governor was 10,095,185 (not counting under votes). California law requires that proponents of a statewide initiative petition need 5% of the number of votes cast within the state for all candidates for Governor at the last gubernatorial election. Using these numbers, 5% of 10,095,185 is 504,760.
Guess how many signatures are required by the California Secretary of State to qualify a statewide ballot initiative? Why it is 504,760.
Orange County had 879,937 votes cast for governor in 2010. Orange County requires 20% of 879,937 to qualify a ballot initiative as seen here.
Los Angeles County had 1,971,076 votes cast for governor in 2006. Los Angeles County required 20% of 1,971,076 to qualify a ballot initiative as seen here.
Math is amazing, isn't it? It always tells the truth.