The City of San José needs to fill a vacancy on its City Council: the seat serving District 3. In addition to representing more than 100,000 residents, the District 3 council member also represents the downtown business community, as well as San José State University. With the news of Councilmember Omar Torres’ resignation, many in District 3 are wondering what comes next and who will be representing them on the City Council. This article looks at the two possible paths forward and the considerations for balancing city needs with community representation.
In San José, when an elected office becomes vacant because the officer has resigned, been recalled, gone on permanent disability, died, or is otherwise unable to carry out the responsibilities of the office, the remaining council members have the option to either fill the vacancy by appointment with a majority vote of the council or call a special election.
Over the past 30 years there have been eight other instances where the council has had to fill a vacancy outside of a regular timeline. Though the City Charter allows for either option, the council has mostly opted to go the special-election route. In 2022 when two council seats became vacant at the same time, the council broke with this tradition and opted to appoint the seats instead. A 2022 memo advocated for an appointment process over a special election for reasons including low voter turnout for special elections — which average about 26%, half of typical turnout for a general election — as well as timeline and budget concerns. While appointing new members could save the city both time and money, it comes at the cost of resident input. Through an appointment, the councilmember is chosen by the other members of the council, whose goals may not align with the goals of the community.
Special Election vs. Appointment
| Special Election | Appointment | |
| Process | The City Council adopts a resolution that sets the date for the election. It must be set at least 114 days out from the adoption dates to allow time for potential candidates to submit their nomination papers to appear on the ballot. | While the charter does not specify a process for appointments, 2022’s appointments were made by posting an application on the city’s website and allowing people to express interest in the role. The application was open for three weeks and was promoted through social media channels and newsletters. Councilmembers were then asked to review the applications and choose four candidates each to move forward to the interview process. Interviews were held during a special meeting of the City Council where the community could provide public comment. Final appointments required a two-thirds vote of the City Council. |
| Timeline | Based on the city clerk’s memo from December 5, 2022, a special election would likely not be able to take place until late spring 2025 with a run-off (if neither candidate receives more than 50% of the votes) and certification of votes in the summer of 2025. The council could choose to appoint an interim council member in the meantime. | Prior appointments took about 6 to 8 weeks. |
| Cost | The Santa Clara County Registrar of Voters determines the cost of the special election and bases it on actual costs of labor and materials. As a comparative estimate, in 2022 the registrar estimated that a special election would cost between $27 and $41 per registered voter for the special election and runoff election. With approximately 48,000 registered voters in District 3 (accounting for a 10% increase from 2022), each election could cost up to $2 million. A runoff election would be necessary if a single candidate doesn’t secure 50% of the vote in the primary, bringing the cost to $4 million. If done by mail-in ballot only, the cost would be about half as much. | There is no cost outside of staff time. |
| Term | The election will be for the entire unexpired term of the office. Any person elected to fill a term of two years or less in length is eligible to serve two successive four-year terms. If they are elected for more than two years, they will only be eligible to serve one successive four-year term. | The appointment will either be effective until the end of the unexpired term of office, or January 1 following the next regular municipal election after the appointment, whichever comes first. Any person appointed to fill a term of two years or less in length is eligible to serve two successive four-year terms. If they are appointed for more than two years, they will only be eligible to serve one successive four-year term. |
| Criteria | Must be a U.S. citizen, a registered voter in the City of San José, and an established resident (30 days or more) in the district that they are being appointed to serve. | Must be a U.S. citizen, a registered voter in the City of San José, and an established resident (30 days or more) in the district that they are being appointed to serve. |
How Does San José’s Process Compare to Other California Cities?
California charter cities have a range of practices in place for handling vacancies in elected office between election cycles. Other cities have a bit more specificity about time and approach, with many requiring a special election unless the term is over within a year.
| Sacramento, Berkeley, San Diego, Fresno | Must call a special election unless the term is over within a year of the city’s next general election, in which case the position can be filled by appointment by a majority vote of the remaining council members. |
| San Francisco | The mayor has sole authority to make an appointment qualified to fill the vacancy under the City Charter. The appointment serves until the next general election. |
| Oakland | City council vacancies are filled by special election within 120 days of a vacancy. An extension of up to 90 days may be allowed in order to consolidate the special election with the next municipal election or statewide election. |
What Happens Now?
The San José City Council will determine which route to take. A special election would ensure that the community has the opportunity to give input, but it does take time and comes at a financial cost. If the council decides instead to make an appointment, we encourage them to develop a transparent process that is in line with SPUR’s Principles of Good Government (see below) and that allows for as much community input as possible. Some ideas include:
- Allowing District 3 community members to nominate potential candidates in their district
- Posting the full applications of the potential candidates online
- Hearing community input on the potential candidates prior to making a decision
SPUR’s Principles of Good Government
SPUR defines “good government” as government that upholds the rights of its people and supports their ability to thrive. Good government delivers programs and services that effectively meet the needs of the people it serves and ensures that its actions are transparent and responsive to public input. To realize this goal, leaders and government employees should have clear, effective rules for how to interact, know who is doing what, and support each other in achieving shared outcomes.
The principles outlined below are not meant to be exhaustive. Due to the broad nature of the topic, they focus more on process than results and can apply to any level and type of government, regardless of scale, scope, or subject area.
Clarity and Fairness: Good government has an established legal framework that is interpreted and enforced impartially. All governmental entities, staff, and elected officials respect and abide by established laws and rules of conduct. Rules and laws are applied in ways that are clear and fair. Legal guidance given to policymakers regarding the application of the law is clear and accurate.
Transparency: Good government is transparent. Information is accessible to the public, is understandable, and can be monitored. Key interests seeking to influence the outcome of decisions are known to the public. Communication is clear, allowing leaders to discuss issues thoroughly and make good decisions.
Accountability: Good government is accountable to the public for its decisions. Roles and responsibilities of governmental entities, departments, staff, and elected officials are clearly defined. Accountability includes fiscal accountability for tax dollars collected and spent.
Representation: Good government engages with the community it represents and is inclusive and equitable. It reflects the community members it serves. It equitably allocates resources, both time and money, to ensure that all residents have opportunities to improve or maintain their wellbeing and that economic prosperity and growth are shared. Good government balances all voices and is not subject to the undue influence of any group or political power. It listens and considers not only the loudest voices but also those without a voice, without organization, and without financial strength. It represents everyone, balancing often-competing interests for the greater good.
Effectiveness, Efficiency, and Adaptability: Good government delivers services to meet the needs of the public while making the best use of the resources available. It effectively leverages its time, talent, and resources to maximize benefits to its residents. It operates at a high level of competence and excellence, obtained through adequate funding, good management, and allocation of resources. Good government is nimble and quickly adapts to address challenges that arise.
Leadership: Good government has leaders at every level (elected, appointed, employed) who establish norms and values to instill respectfulness in all interactions. They insist on civility in decision-making and in all public engagement and discourse. They enforce and follow the rule of law. Good leaders motivate and inspire others, creating an environment of collaboration and success despite differences of opinion. Good leaders work through challenges and make tough decisions in a timely manner. They balance all interests, set realistic expectations, strive for the greatest public good, and trust in the process, accepting and implementing results they may not personally like.
The choice of calling a special election or appointing someone to fill the vacancy is entirely up to the San José City Council to determine. Ideally, elected positions that become vacant, especially those that are designed to represent a specific constituency such as council district, would be subject to the will of the voters. Should that not prove practical and economically responsible, the council can still develop a transparent process that would facilitate community input.