Every year voters receive a small booklet of information that includes a list of candidates, descriptions of upcoming ballot measures and arguments for and against. Most of us give those arguments – 300 words each of pros, cons and one rebuttal apiece – little thought. But most of us aren’t Scotty McClure, a board trustee for the Southern Humboldt Unified School District, vocal Donald Trump supporter, anti-taxxer and civic enthusiast.
When the opportunity arose for residents in the Southern Humboldt Community Healthcare District to weigh in on Measure W – a special election measure that would create a $170 a year parcel tax within the district’s boundaries, McClure jumped at the opportunity. He labored over his con statement, grudgingly complying with requests it be edited for length. When given the opportunity to answer the pro-measure W’s rebuttal, he shot back with a succinct opinion that couldn't be edited for length: “Insert fart smell here.”
Those four simple words have made things fairly complicated for the Humboldt County Elections Office, which is required to get the voter pamphlet out no later than March 8 for the May 2 vote. The elections clerk, Kelly Sanders, objects to sending voters a packet with a fart joke. But the date to submit pro and con arguments has passed, and McClure’s was the only submission. McClure, currently vacationing in Arizona, is holding his ground.
“I could understand why if I were cutting somebody down, but I’m not,” said McClure, adding that “fart” is not a profanity.
Because McClure refuses to withdraw or amend his irreverent statement, Sanders has been forced to seek a court order to delete the offending words because state law doesn't give elections officials discretion to censor ballot arguments. Instead, the California Elections Code states that during the public examination period for elections material “any voter … or the elections official may seek a writ of mandate or an injunction requiring any material to be amended or deleted.” Deputy County Counsel Joel Ellinwood explained more clearly why the fart joke is going to court.
“It’s my client’s position that that is not consistent with the elections code as interpreted through case law,” said Ellinwood. “My client has no authority to independently interpret what should and should not be a valid argument. If there is a question about that, it has to be put before the judge.”
Ellinwood refers to the part of the state elections code that might prompt Judge Timothy Cissna, in front of whom the matter will be debated, to issue a writ of mandate or injunction, which refers to material that is “false, misleading or inconsistent.”
Reached by phone, Steve Chessin, president of Californians for Electoral Reform, said that at first blush the phrase, “insert fart smell here,” did not seem to be meet the criteria of being “false, misleading or inconsistent,” although he hastened to say this was only his personal opinion and he might revise it after reviewing the full pro-and-con rebuttals.
The Humboldt County Office of Elections sent us transcripts of the pro and con arguments (below).
Ellinwood is pushing for a March 6 court date, when McClure will be back from Arizona, which will put the county just under the wire to distribute the pamphlets by deadline.
“My client feels strongly about the integrity of the elections process,” said Ellinwood in a phone interview this morning. “She feels that profane expressions that don’t provide information for the voters don’t belong in official elections material.”
He added that it was “inappropriate” for taxpayers to fund for the distribution of “irrelevant or scatological material.”
McClure interprets the injunctive action, in which the board of supervisors will be named as the respondent and McClure will be listed as the party of interest, differently.
“The elections department does not have a right to censor me,” he said, adding that the close date has put a damper on his Southwestern vacation.
The outcome of the hearing, tentatively scheduled for March 6, may set local precedent for the fate of future fart jokes in election material.
Editor's Note: This article was updated to reflect new material sent to us by the elections office and to correct the description of the elections code, which is a state, not a municipal code. The
Journal regrets the error.