Today, the News & Observer ran an editorial that they probably thought was an attempt to disagree with us and minimize the concerns JLF has had with the potential misuse of public funds by local governments. North Carolina counties, school districts, and the City of Durham have likely violated state law by using public funds to advocate for sales tax increases.
The N & O though appears to agree with a critical point I support: The legislature should clarify the law.
It is worth explaining though what the N & O gets wrong or fails to properly address. The misuse of public funds isn’t a minor issue and shouldn’t be so quickly glossed over.
One problem with the editorial is there isn’t one example provided as to why local governments likely were endorsing referendums against the law.
Discussing Orange County, the N & O argued,”while not every word in the county’s lavish ($50,000) presentation was hair-splittingly neutral, it was, overall, a reasonably objective attempt at voter education. Certainly the 2010 law doesn’t offer any guidance to the contrary.”
I recommend that you see what Orange County did–making a video arguing that the tax is all about supporting public education and that it would help create jobs is not voter education. It is one-sided advocacy that no reasonable person could interpret as anything other than support for the referendum.
When complying with laws, you don’t need to have “guidance to the contrary” to know that something isn’t allowed. The 2010 law, which expressly states that counties can’t use public funds to endorse a referendum, is clear enough to know that pro-advocacy campaigns aren’t allowed. Further, even if there was some question, why would the default position be to push the legal line and potentially misuse public funds?
The 2010 statutory language also isn’t the only reason why these advocacy campaigns likely are prohibited. North Carolina case law, while not interpreting the 2010 language, makes it even more clear that what has been done is problematic.
In Dollar v. Town of Cary, 153 N.C. App. 309 (2002), the NC Court of Appeals held that it isn’t necessary for a local government to expressly state “vote for” a particular issue in order for there to be a legal violation. While it is legal for a local government to provide informational advertising, it isn’t legal to provide promotional advertising.
It becomes a fact-specific question as to whether something is promotional in nature based on the “style, tenor, and timing” of the advertising. “Where the advertising, however, is designed to promote a viewpoint on an issue in order to influence an election, it is impermissible”
Local governments went far beyond providing information and were promoting a viewpoint. There’s nobody (at least with a straight face) who can say that these local governmental bodies weren’t advocating in favor of the taxes.
Finally, the N & O fails to mention that every jurisdiction except for Orange County (and maybe one more) that we sent letters to expressing our concerns took down the advocacy material.
