A San Francisco Superior Court judge has denied a temporary restraining order requested by opponents of Measure B, meaning the county BART tax is likely to pass with 66.78 percent of the vote — a mere .11 percent over the threshold.
San Francisco Superior Court Judge Peter Busch ruled on Tuesday that the lawsuit, brought by a nonprofit group focused on Bay Area transportation and environment, was filed too late.
The Transportation Solutions Defense and Education Fund, or TRANSDEF, was seeking a manual recount of 10 percent of precincts for the measure. The group had initially filed its suit last week in Santa Clara County, but was forced to file another suit in San Francisco because the Secretary of State doesn’t have an office in Santa Clara County, according to group president David Schonbrunn.
Despite Tuesday’s scheduled court hearing, Santa Clara County officials had certified the election results early Tuesday morning. Barring an expensive recount funded by the opponents themselves, the current election results are final.
Opponents had fought the 1/8-cent sales tax — created to help fund operating costs of a BART extension to Santa Clara County — because they believe BART is too expensive and environmentally damaging compared to other transit options. Supporters say the extension is an essential component to Bay Area mass transit. The sales tax still will not take effect unless all funding for the BART extension is lined up in advance.
The request for a recount hinged on a technical issue: The registrar’s office normally is required to conduct recounts when the margin of victory is less than .5 percent. But because “margin of victory” is defined as the difference between votes for and against a measure — 33.56 percent in this case — state and county officials argued they can’t perform the recount, Schonbrunn said.
“The issue is that the margin of victory is less than one vote per precinct,” Schonbrunn said. “We have no way of knowing whether the measure actually won.”
He said the rules that are in place to ensure accuracy in close races don’t apply to ballot measures requiring supermajorities, such as the two-thirds approval required for Measure B.
“The Secretary of State created this problem by issuing faulty regulations,” Schonbrunn said. “Now, instead of having resolve they’re hoping the whole issue would go away.”
A spokesperson for the Secretary of State has said that state election officials are considering revisions to the regulations.
