Throughout California, local government and school officials have been stunned by voters’ reluctance this month to approve new taxes and bonds.
The California Taxpayers Association has reported that more than half of the local measures appeared to fail on March 3, although some may squeak through when all votes are tallied.

One of the casualties appears to be San Diego’s Measure C, backed by Mayor Kevin Faulconer and local business and labor interests, which would have boosted hotel taxes for expansion of the city’s convention center, curbing homelessness and street repairs.
As of last week, Measure C had about 65% of  San Diegans’ votes, a clear majority but shy of the two-thirds margin California law and San Diego’s city attorney say are required, thus folding it into a legal conflict that’s been simmering for the past three years.
State law says that “special purpose” taxes, which Measure C clearly is, must have two-thirds approval by voters. But three years ago, the state Supreme Court cast doubt on that principle in upholding the basic right of voters to impose taxes via the initiative process.

Some Tax Measures Failing to Receive Two-Thirds Votes Have Been Validated by Judges

Writing the 5-2 majority opinion, Justice Mariano-Florentino Cuéllar declared, “Multiple provisions of the state Constitution explicitly constrain the power of local governments to raise taxes. But we will not lightly apply such restrictions on local governments to voter initiatives.”
He thus implied that special purpose taxes placed on the ballot by voters via initiative may not be affected by the two-thirds vote requirement, but was not explicit, touching off a running legal battle.
Since then, some special tax measures failing to receive two-thirds votes have been validated by local judges, citing Cuéllar’s opinion, but most have not.
An early test arose in two San Francisco tax measures, both placed on the ballot in 2018 via initiatives personally sponsored by members of the city’s Board of Supervisors, one for early childhood education, the other to battle homelessness.
Both received less than two-thirds votes, but a local judge, Ethan Schulman, validated them anyway.
However, Fresno Superior Court Judge Kimberly Gaab went the other way on a sales tax measure to improve city parks. The tax hike received just 52.2% of the votes and when its sponsors sued to have it declared a winner, Gaab wrote, “The two-thirds vote requirement applies to all special tax proposals, regardless of the proponent of the proposal.”

Sooner Would Be Better Than Later as the Roster of Disputed Tax Measures Grows

Her interpretation was echoed by Alameda County Superior Court Judge Ronnie MacLaren as he declared a 2018 Oakland parcel tax for education a failure with 62% of the votes.

“Allowing Measure AA to be enacted with less than two-thirds of the votes would constitute a fraud on the voters,” Judge MacLaren wrote, noting that “the ballot measures prepared by the city unambiguously advised voters that Measure AA would require two-thirds of the votes to pass.”
San Diego voters were told the same thing, but backers of Measure C may take its validity to court should it fall short in the final count.
“What’s very clear is that a large majority of San Diegans support priorities in Measure C,” Rachel Laing, a spokeswoman for the support coalition said in a statement. “In the coming days, the coalition will discuss our options for how to move forward if the measure ultimately falls short of the two-thirds threshold.”
The earlier cases are already moving through the appellate process and eventually, the Supreme Court will have to tell us what it meant in that 2017 case. Sooner would be better than later as the roster of disputed tax measures grows.
CalMatters is a public interest journalism venture committed to explaining how California’s state Capitol works and why it matters. For more stories by Dan Walters, go to calmatters.org/commentary.
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