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For the Chargers, Every Vote Will Count

Now that the Chargers’ plan for a downtown stadium has made the November ballot, City Attorney Jan Goldsmith must do a legal analysis of the measure. That’s a problem, since no one is certain whether the measure needs a simple majority, or a two-thirds majority to pass. The California Supreme Court is set to weigh in on the issue, but that might not happen until after the vote.

Jan Goldsmith doesn’t know what to do.

Now that the Chargers were successful in putting a measure on the ballot that would raise hotel-room taxes and direct the city to use most of that money to design and build a convadium unlike anything in the country, San Diego’s city attorney has to make a choice.

Goldsmith is supposed to do a legal analysis of the ballot measure. Voters will supposedly read this and be more knowledgeable about what they’re voting on.

However, Goldsmith does not know what he’s going to say about whether the measure will require a two-thirds vote to pass, or a simple majority. He’s going to ask the California Supreme Court to speed up its review of a ruling that would indicate it only needs a simple majority.

But that’s kind of a Hail Mary. It’s almost certain that the vote will happen before we know what the law is. Goldsmith is pleading for patience. He’s looked at the history and never before has San Diego dealt with a citizen’s initiative to raise taxes, let alone two (the other is the so-called Citizens’ Plan).

He says he’s considering just telling voters he doesn’t know.

The appellate court’s ruling in California Cannabis Coalition v. City of Upland upended Goldsmith’s view of California law. He said then and still agrees that the decision unquestionably means the Chargers would only need a simple majority to raise taxes via a citizens’ initiative. This would obviously have major consequences not just for the Chargers but for taxes and politics across the state.

“If it’s left up to me,” Goldsmith said, “I would go back to the way the law was before the Upland case.”

That means the Chargers measure would require a two-thirds vote. But Goldsmith says he doesn’t want to make the call. If the Chargers get a simple majority, he doesn’t want to be the one to say their measure doesn’t pass and then have the Supreme Court contradict him by upholding the Upland ruling.

So, for now, it’s Hail Mary time. Maybe the court will somehow drastically speed up its ruling to save San Diego this bizarre dilemma. Goldsmith admits it’s a longshot.

Fredric Woocher, an attorney who specializes in election law, said he sympathizes with Goldsmith’s plight, to a point.

“Somebody’s going to have to make the decision about whether it passes or it doesn’t with 50 percent plus one,” Woocher said. “Right now, it would be a stretch for the city attorney to say it needs anything other than a two-thirds vote but I don’t think it would be unlawful.”

All of this, of course, is irrelevant if one of two things happens: a) if the Chargers get a two-thirds super majority endorsement from voters or b) if they fail to win even a majority.

How things are going on that front is unclear. The Chargers’ Mark Fabiani blasted a poll commissioned by the Republican Party through the firm Competitive Edge. It had respondents at 58 percent likely or definitely against the Chargers’ plan. They were also opposed to a downtown stadium by a whopping 80 percent.

And that’s with 62 percent saying they were fans of the team.

Fabiani pointed to a poll Competitive Edge did months ago, during the height of the tensions between the team and San Diego Mayor Kevin Faulconer. It had showed a bare majority of voters would support the mayor’s plan for a new stadium where no taxes were increased. The plan, however, did envision hundreds of millions of dollars of government subsidy. It just didn’t raise taxes.

Fabiani’s own polls highlighted the government subsidy in the mayor’s plan and declared it a major dud with voters. He wondered how the pollster could think that was more appealing than the Chargers’ current plan.

“The polling they did last year was completed in the midst of a very negative, controversial environment. Now, in a much calmer environment, we are told by the same pollster that a ballot measure has no chance. Something is wrong, right?” Fabiani wrote in an email.

Competitive Edge’s John Nienstedt said the most important difference is that the Chargers’ plan is a tax increase. He also pointed to data showing the mayor was far more trusted than the Chargers.

Nienstedt said his numbers could change if he considers a much higher turnout in the election. He surveyed voters in April and filtered the results to emulate a low-turnout primary election. Even with an adjustment, he said, he struggles to see the Chargers plan get a majority.

“It’s like the higher-propensity fans soberly weigh the issues and say, on balance, there might be better things we should be spending our money on,” Nienstedt said. “It’s the fans that are low-information voters that are the ones who go head over heels for the stadium because they don’t consider other civic priorities.”

He admitted more of the latter might turn out in November.

The Chargers spent more than $1 million qualifying their initiative for the ballot and the team could spend many millions more on a campaign. That would have an impact. So, however, would an organized opposition campaign. Even Barrio Logan activists have begun protesting the Chargers.

Every vote will count, even if it decided that the Chargers require a two-thirds vote and don’t get it. Let’s say that happens and the team only gets a majority.

That would be a pretty significant win. The Chargers could say clearly that a majority of voters wants a stadium downtown and wants it funded with new money, not pulled from existing revenue streams. It might set the table for new negotiations, especially if the other measure, the Citizens’ Plan, does pass.

But that might be wishful thinking. In 2006, a variety of groups as diverse as those lining up against a Chargers stadium crushed a measure to move San Diego’s airport to Miramar Marine Corps Air Station. It lost so badly that even its most ardent proponents admit San Diego’s airport is going nowhere.

A decisive blow like that might send the Chargers packing to Inglewood.

A majority, however, might be enough to keep the vision alive.

Even so, Woocher is ready. He said if the city attorney does decide the Chargers’ plan could pass with a simple majority, he’s available.

“If someone needs to sue when they do that, then let me know,” Woocher said.

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