Using Historical Data To Handicap The November 2011 San Bernardino City Attorney’s Race
September 15, 2011 Leave a comment
By Michael Reiter, Attorney at Law
Modern San Bernardino City Elections are still largely dependent on retail politics: knowing people, being involved in the community, wearing out shoes by walking the precincts going door to door, depending on the Ward, getting an endorsement from the City’s public safety unions, to some degree endorsements, using direct mail to target likely voters and yard signs. Electronic communications, such as Facebook, websites, YouTube and Twitter will become increasingly important, particularly for organizing support and raising money. The lessons regarding the use of technology from the 2008 Presidential election hold some answers to candidates wise enough to study them. However, as far as actual votes, Facebook and Twitter may not translate into more votes just yet. Facebook will attract “support” that does not necessarily translate to campaign help (campaign volunteers, donations) or votes. People can be a candidate’s fan on the Internet, but may not be a registered voter within the ward, or in a city-wide election, within the City of San Bernardino. This is especially true in the City of San Bernardino which has experienced a population shift of new residents, and old residents leaving to points east (Redlands, City of Highland, Yucaipa, Beaumont and Banning), or simply dying.
I am going to look at data (from the San Bernardino Registrar of Voters) from the most recent elections data involving city-wide elections, all the elections available online regarding the City Attorney’s Office, and all available data regarding the current City Attorney, James F. Penman, that I can find. I will not actually handicap the race. I think it will be very close for the reasons stated below.
The most recent referendum on the City Attorney’s Office was Measure C, which would have amended the City Attorney to make the offices of City Treasurer, City Clerk and City Attorney appointed instead of elected. It was in a consolidated election with statewide elections of consequence (including Governor), federal midterm elections, but no other San Bernardino elections. Both of the elected City Treasurer and elected City Clerk endorsed the measure, as did the Mayor. The City Attorney, James F. Penman, opposed the measure, as did the voters.
| Measure C – San Bernardino City |
| 148/148 100.00% |
|
Vote Count |
Percent |
|
| YES |
11,333 |
36.86% |
| NO |
19,409 |
63.14% |
| Total |
30,742 |
100.00% |
By a vote of almost two to one, the citizens of San Bernardino rejected the move to make the City Attorney appointed. In his Media Conference Statement on June 29, 2011, challenger David McKenna said “Under the City Charter, the Office of the City Attorney is an elected position and the responsibilities of the office are clearly enumerated. During the last city election, voters overwhelmingly voted “No” on Measure C and affirmed that the City Attorney should remain an elected position and be independent of the Mayor and Council. On this point, I wholeheartedly agree and pledge that I will keep the office independent and elected.” I would not read too much into the Measure C result as a predictor of the City Attorney’s race because one of the things opponents argued is that if you don’t like an official, you should vote the official out, not abolish the office.
In some ways, Measure C was another attempt at Measure M, the year 2000 Charter Reform measure led by the now-Mayor’s son. It, too, included a provision to make the City Attorney, City Clerk, and City Treasurer appointed instead of elected. Measure M also included other changes to the Charter unrelated to making the City Attorney, City Clerk, and City Treasurer appointive. The Measure M election was November 7, 2000, the same time as a Presidential Election, other Federal elections, and other state-wide issues.
MEASURE M
CITY OF SAN BERNARDINO
#PCT: 79
#RPT: 79
%RPT: 100.0%
Vote for: 1
ADOPT NEW YES 11,277 32.2%
CITY CHARTER NO 23,691 67.7%
In Measure M, the voters rejected the Charter changes by more than two to one. More people voted, but it was a closely contested Presidential election (George W. Bush versus Al Gore). However, there were other Charter changes, so some of the people voting No may have disliked the new Charter but still supported the change from elected to appointed.
The next data that should be examined is the last City Attorney election: November 2007. This was one of three contested City Attorney James F. Penman has faced. The other elections were against Stan Tomlinson in 1995, and against then-City Attorney Ralph Prince in 1987. The November 2007 election involved former San Bernardino Senior Assistant City Attorney Marianne Milligan versus City Attorney James F. Penman. It was a close race:
| ATTORNEY – CITY OF SAN BERNARDINO | |||||||||||||
| Vote For 1 |
120 of 120 Precincts Reporting |
||||||||||||
|
|||||||||||||
In comparison, the City Clerk’s election that year was also contested. 1,932 more people voted in the City Attorney’s contest then did in the City Clerk’s election.
The previous City Attorney’s election, held in November 2003, was uncontested.
CITY OF SAN BERNARDINO
City Attorney
JIM PENMAN 7,999 96.11
WRITE-IN 324 3.89
CITY OF SAN BERNARDINO
City Clerk
RACHEL MENDOZA CLARK 8,464 98.67
WRITE-IN 114 1.33
CITY OF SAN BERNARDINO
City Treasurer
DAVID C. KENNEDY 7,024 75.43
DAVID R. OBERHELMAN 2,261 24.28
WRITE-IN 27 0.29
Even though it was contested, almost four percent of the voters wrote in another name. That can either be a protest against uncontested elections (as can an undervote), or it can be seen as a referendum on the candidate. Here, Rachel Clark was also running uncontested, and the write-in vote was 210 votes higher, and she received 464 more votes than City Attorney James F. Penman. There was a contested City Treasurer race; 989 more people voted in the City Treasurer’s race than for City Attorney. That could be a protest against the City Attorney candidate, or it could be people just don’t like to vote in uncontested elections. There is no definitive answer to draw from this data.
The last available data are the three Mayoral elections in which City Attorney James F. Penman ran for election. The most recent was November 3, 2009:
| MAYOR – CITY OF SAN BERNARDINO |
| 178/178 100.00% |
|
Vote Count |
Percent |
|
| RICK AVILA |
1,205 |
8.07% |
| JIM PENMAN |
5,376 |
36.01% |
| PAT MORRIS |
8,349 |
55.92% |
| Total |
14,930 |
100.00% |
Here, City Attorney Penman received 5,376 votes. I think that is the minimum he will receive in this election, and that about 15,000 votes will be cast. I don’t think all the Morris votes were anti-Penman votes in the Mayoral election, many were pro-Pat Morris votes. The Mayoral run-off of February 7, 2006 had this result:
| SAN BERNARDINO Mayor Run-off |
| 113/113 100.00% |
|
Vote Count |
Percent |
|
| PAT MORRIS |
10,093 |
63.47% |
| JAMES F. ‘JIM’ PENMAN |
5,809 |
36.53% |
Even in a three way race, with less votes cast between 2006 and 2009, City Attorney Penman only lost about nine percent of his vote between 2006 and 2009. Some of that could be attributed to liking Rick Avila more, or changing from a Penman vote to a Morris vote, or wanting to keep Penman as City Attorney.
And lastly, here is the 2005 race for Mayor that created the run-off:
| City of San Bernardino – Mayor |
| 113/113 100.00% |
|
Vote Count |
Percent |
|
| PAT MORRIS |
11,249 |
43.42% |
| JAMES F. ‘JIM’ PENMAN |
6,648 |
25.66% |
| CHAS A. KELLEY |
4,079 |
15.74% |
| RICK AVILA |
3,425 |
13.22% |
| MICHAEL ELLISON-LEWIS |
466 |
1.80% |
| Write-In |
42 |
0.16% |
| Total |
25,909 |
100.00% |
I don’t have any other data available, but online sources say that City Attorney Penman beat Stan Tomlinson by a 3 to 1 margin in 1995, a 1994 Los Angeles Times story that gives the June 9, 1994 San Bernardino County District Attorney race as: Dennis Stout: 64,186 (44%) Jim Penman: 46,249 (32%) Michael A. McDowell: 35,074 (24%).
This election is largely a municipal election without having statewide or federal races driving turn-out. I would expect the turn-out to be around 15,000.
The takeaway: The race will be close. Expect City Attorney James F. Penman to emphasize his records, the recent attempts to cut the City Attorney budget, the history of corruption in the City and the City Attorney’s record against corruption, and attempts to portray the challenger, David L McKenna as a carpetbagger, and allegations regarding the challenger’s actions as Public Defender and County Supervisor. Expect challenger David McKenna to attack the longevity of City Attorney Penman’s career as City Attorney (the change mantra), the history of the City Attorney’s relationships with others in the City, and no doubt the same allegations that were brought up in the last City Attorney’s race. Expect the budget to be an issue for the challenger, as well.
The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.
About Michael Reiter, Attorney at Law
