PROTECTING THE TWO-THIRDS VOTE REQUIREMENT
My partner here at HJTA, Laura Dougherty, wrote a column in February about our efforts to defend the two-thirds vote against multiple attacks — in the Legislature, in the courtroom and at the ballot box. I want to update you with news from the front lines in each of these battles.
As most of our readers know, local taxes are classified as either “general taxes” or “special taxes.” “General taxes” are unrestricted taxes that are deposited in the General Fund and can be budgeted at the discretion of the governing body for any public purpose. “Special taxes” are taxes that have strings attached because they have been dedicated to one or more specific purposes. They are either segregated in a separate fund or accounted for through separate bookkeeping entries.
All new taxes and tax increases require voter approval. General taxes need the approval of only a simple majority. Special taxes, however, need two-thirds approval. The only exception is for taxes to repay school bonds, which, although they are special taxes, require only 55% approval thanks to Proposition 39.
The two-thirds vote requirement for all other special taxes provides an important protection for taxpayers. General taxes come to the ballot at a disadvantage because voters naturally distrust the government when it asks for a tax increase but refuses to make any commitment as to how the money will be spent. Conversely, special taxes enjoy a huge advantage at the ballot box because they are almost always “dedicated” to some popular public service, such as police protection or park maintenance. When people are convinced by the pro-tax campaign that, without more funding, their police or parks are at risk, they will generally vote to raise taxes.
I put quotation marks around the word “dedicated” in the preceding paragraph because municipal budgeting is a shell game. The thing that really needs more money might be (and often is) the city’s pension debt for retired public employees. But no one would vote to raise taxes for that. So the city “dedicates” the tax to parks, which frees up money in the parks budget that now can be transferred to the pension fund. To offset the advantage of this sort of gamesmanship, Propositions 13 and 218 provide the important protection of a two-thirds vote requirement for special taxes.
Government officials, however, want to have their cake and eat it too. That is, they want the election advantage that comes with linking the tax to a popular public service, but they don’t want the higher approval threshold that comes with it. So they get creative.
One way government officials try to evade the two-thirds vote requirement is through the use of an “advisory measure.” They will propose the tax as an undedicated general tax needing only a simple majority vote. We’ll call that Measure A. Then, in a separate companion measure on the same ballot (Measure B), they’ll ask voters to “advise” them to spend the new tax revenue on police or parks. HJTA challenged this bifurcated special tax scheme in a case called Johnson v. County of Mendocino. We lost. Fortunately, however, these A/B schemes are not very popular because statistics show that voters usually approve the advisory measure but reject the tax measure.
Another way government officials try to evade the two-thirds vote is by proposing a general tax, but including in the ballot language a detailed description of popular public services that are supported by general taxes. For example, this was the ballot question for Measure K, a proposed sales tax increase on the November 2018 ballot in Yuba County:
“To maintain and protect essential services such as 9-1-1 emergency medical/fire response; improving wildland fire containment; maintaining 24-hour sheriff’s patrol; attracting/retaining jobs, businesses, and qualified sheriff deputies; and other essential services, shall the measure to establish a 1 cent sales tax for 10 years in unincorporated Yuba County, providing an estimated $4,300,000 annually requiring accountability, citizens’ oversight/audits, and all revenue controlled locally, be adopted?”
When Yuba County declared that Measure K passed with 53% of the vote, HJTA sued the county, arguing that the ballot question described a special tax, which triggered the two-thirds vote requirement. We won.
As time goes on, hostility toward the two-thirds vote requirement intensifies, resulting in even bolder attacks on this important right. On the legislative front, a bill was introduced this year that could have amended the constitution to drastically reduce the two-thirds vote. That bill, ACA 1, would have expanded the 55% vote currently applicable only to school bonds so that it applied to many other special taxes as well. ACA 1 cleared all of its policy committee hurdles, but — thanks to the tireless work of HJTA’s lobbyist, David Wolfe — when the bill came up for a full vote on the Assembly floor, it fell far short of the votes it needed to pass.
On the judicial front, as Laura described in her February column, the city attorney for the City of San Francisco published an opinion letter declaring that the two-thirds vote requirement applies only to special taxes proposed by government officials. In his opinion, it does not apply to special taxes proposed by a citizens’ initiative. Leaping on that opinion, San Francisco government officials, supposedly acting as mere “citizens,” circulated initiative petitions proposing higher taxes for a variety of new city programs. Once they obtained the requisite number of signatures, they placed those initiatives on the ballot, then declared them passed with bare majority approvals. This then raised the question in other cities, including Oakland and Fresno, as to whether special tax initiatives on the ballot in those cities had passed with bare majorities. HJTA sued San Francisco. Another group of plaintiffs sued Oakland. In Fresno, where the initiative proponents sued the city, and the city took a “neutral” position, HJTA intervened to defend the two-thirds vote.
As of this writing, we have decisions from the trial courts in San Francisco and Fresno. HJTA lost in San Francisco but won in Fresno. Appeals are expected to follow. If the courts of appeal divide as well, the California Supreme Court will be forced to resolve the split. The composition of that Court has changed considerably in recent years due to Jerry Brown appointing four new members to that seven-member court while he was governor. We will continue to keep you updated as we fight these battles to protect Proposition 13, Proposition 218 and the two-thirds vote for special taxes.