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District 2 supervisor candidate Nick Josefowitz sues SF over timing of election

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A judge on Thursday dismissed a lawsuit filed by District 2 supervisor candidate Nick Josefowitz seeking to move the election for the seat from November to June. (Jessica Christian/S.F. Examiner)
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Supervisor candidate Nick Josefowitz filed a lawsuit Thursday against The City to move the District 2 race scheduled for November up to June 5.

Josefowitz, a co-plaintiff in the lawsuit and a member of the BART Board of Directors, is asking a San Francisco Superior Court judge for a different interpretation of the City Charter than one made by City Attorney Dennis Herrera.

The District 2 seat was vacated by Mark Farrell last week when he was named interim mayor. The board vacancy triggers provisions in the charter for when an election must occur for voters to decide who will serve in the seat. In the meantime, Farrell, as mayor, has the power to appoint someone to fill the vacancy; he appointed his former legislative aide and county clerk Catherine Stefani to the post Tuesday.

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Herrera has ruled the election for the District 2 seat should occur in November, but the legal filing argues the election should be June 5. An election is already scheduled for June to decide San Francisco’s next mayor and District 8 supervisor. The judge will have to determine which interpretation of the charter is right.

The charter provision subject to the lawsuit states the appointee will serve “until a successor is selected at the next election occurring not less than 120 days after the vacancy, at which time an election shall be held to fill the unexpired term, provided that (1) if an election for the vacated office is scheduled to occur less than one year after the vacancy, the appointee shall serve until a successor is selected at that election or (2) if an election for any seat on the same board as the vacated seat is scheduled to occur less than one year but at least 120 days after the vacancy, the appointee shall serve until a successor is selected at that election to fill the unexpired term.”

The lawsuit argues that “nothing in the text of the Charter indicates that one proviso trumps the other proviso if both arguably apply.”

“To the contrary, the text provides that one proviso ‘or’ the other proviso could apply, squarely leaving both provisos on equal terms. This creates an ambiguity in how the Charter should be interpreted in this instance,” the lawsuit says. Given the ambiguity, the lawsuit argues, the judge should rule according to what voters intended when passing the law, which was to limit the influence of the mayor’s appointment power.

“We’ve issued a detailed memo laying out our legal findings on this point and will be handling the matter in court,” said Herrera’s spokesperson, John Cote.

The memo, dated Jan. 30 and written by Deputy City Attorney Jon Givner, says that the charter doesn’t say if both conditions apply which one should take priority. Past opinions said they should be taken sequentially, meaning the election should occur in November.

Interpreting the charter to have the election in June would have “incongruous results,” such as having to have two elections within five months and incurring additional taxpayer costs, the memo said.

Josefowitz said in a statement that “there are no good reasons why we should not allow the people of District 2 to choose their representative at the next regularly scheduled election in June.”

“Our Democracy was founded on the principle that we the people elect our representatives,” he said.

District 2 candidate Kat Anderson opposed the lawsuit.

“This is the second time Nick Josefowitz has tried to undermine another candidate for office running against him with a transparent attempt to change the rules,” Anderson said. “I’m confident that I can run a strong campaign whether the election is in November or in June but more importantly I always welcome anyone — especially a woman — to run for office.”

Josefowitz launched late last year a signature drive to bring to the voters in June a measure imposing term limits on board members. The effort was seen as a way to prevent former Supervisor Michela Alioto-Pier from entering the contest since she had previously served two four-year terms. Alioto-Pier praised Stefani’s appointment this week.

Stefani said she was “laser-focused on representing the residents of District 2 right now and ready to win whenever the election may be held, so District 2 has a supervisor with both experience and passion to best represent them in City Hall.”

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