Fresno County Clerk/Registrar of Voters James Kus plans to place the controversial Better Roads, Safe Streets tax measure on the November ballot, but new litigation from the county may delay the initiative to the March 2028 ballot.
The Fresno County Board of Supervisors voted 3-2 in closed session on Tuesday to initiate litigation against the State of California, the proponents of the half-cent tax measure, and Kus on the grounds that Assembly Bill 1923 is unconstitutional.
Driving the news: Last week, Gov. Gavin Newsom signed AB 1923 into law. The bill was crafted by Asm. Esmeralda Soria (D–Fresno) and Sen. Anna Caballero (D–Merced) to force Fresno County to place the Better Roads, Safe Streets measure on the November ballot.
But the bill still required Kus to receive a resolution from the Board of Supervisors sending the measure to the ballot and approving the ballot language, leading to Tuesday’s Board of Supervisors meeting.
The big picture: Supervisors Garry Bredefeld, Nathan Magsig and Buddy Mendes voted to initiate litigation to challenge AB 1923 in closed session after receiving a study on the measure and voting to place the Better Roads, Safe Streets measure on the March 2028 ballot.
Despite the resolution to send the initiative to 2028, Kus told the board that AB 1923 requires him to place the measure on the November ballot.
Conflicts with election law: Magsig questioned Kus about how AB 1923 conflicts with elections law.
Kus said his understanding of the law qualified the initiative for the November ballot without a resolution needing to be finalized by Aug. 7 – the deadline to place measures on the November ballot. He added that AB 1923 also directs the county to follow its regular election rules.
“The two sentences in Section 1 of AB 1923 – one is effectively saying ‘ignore this election law,’ and the rest of it says ‘follow all election law.’
Magsig responded, “This is why I’m in a conundrum with this. And I can appreciate the Legislature trying to solve a problem, but what they’ve done is actually created many, many more problems for me as I sit here today.”
Magsig said AB 1923 is now in conflict with election law, saying the Legislature should have set election law aside specifically for the bill to allay his concerns.
“They said that, in one sentence, this will be on in November – more or less – but then they also said follow election law, our normal processes,” Magsig said. “So to me, this is something that the courts are going to end up having to figure out because this is a big issue.”
Supervisor Luis Chavez asked Kus to clarify that he will place the measure on the ballot, short of a court order telling him otherwise.
“Any time we receive direction from a court on any question about election law, we will be following the court’s direction,” Kus said.
What we’re watching: The county now launches its litigation, which will potentially hold up Kus from placing the measure on the November ballot and pushes it to March 2028 anyways.
In the meantime, the City of Fresno appears to be poised to reverse course on its own city-wide general tax.
Last Friday, Fresno Mayor Jerry Dyer announced that he was submitted a city council-approved general tax measure to Kus to place on the November ballot.
The half-cent measure is intended to serve as a stopgap for if Measure C funding runs out without the Better Roads, Safe Streets tax replacing it. It would sunset after 10 years or in the case of a half-cent county-wide transportation tax passing in that period.
Dyer said at the time and again on Monday that potential litigation from the county caused too much risk to leave the November ballot without any tax measure to replace Measure C funding.
On Tuesday afternoon, four City Council members – Miguel Arias, Tyler Maxwell, Nick Richardson, and Brandon Vang – called for a special meeting to be held on Wednesday at 3 p.m. to remove the general tax from the November ballot.
Dyer said Monday that the deadline to remove the tax would be Wednesday and would require action from the council.
Results of the study: Not lost in the shuffle of if the measure will appear this year or down the line was the results of the study the board ordered last month.
The 500-page study (which can be viewed here) found that the Better Roads, Safe Streets initiative is more prescriptive and less flexible than Measure C is.
Part of the measure focuses on roads according to the Pavement Condition Index (PCI), a score from zero to 100 that indicates the health of a road. Better Roads, Safe Streets has a “worst first” plan, meaning the roads in the county with the lowest PCI scores would be addressed first.
Per the study, the initiative would improve Fresno County’s worst roads, but the funding that it brings in would only maintain the current average PCI of 65. Fresno County would need to spend an additional $29.5 million from its budget to improve roads to an average PCI of 70, which is required by the measure.
“Worst First pavement repair provisions, disadvantaged community requirements and bike lane and safe route to schools mandates may result in an overall decline in PCI if preventative maintenance funding cannot be secured from other sources,” the study reads. “Further, it will direct funds from high volume County roads to low volume streets.”
Better Roads, Safe Streets would diminish the county’s ability to leverage matching funds to improve its freeway infrastructure. The study also found that the public transit investments in the measure would not materially reduce countywide peak-period congestion through 2049.
The study also honed in on how the measure was actually written.
“Implementation would require clarifying and defining terms used ambiguously and contradictory throughout that directly exclude the County infrastructure, such as regional vs. local roads, neighborhood vs. rural, maintenance vs. improvement,” the study reads.