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Sneaking Tax Measures on a Special Election Ballot?

Joel Fox
Editor of Fox & Hounds and President of the Small Business Action Committee

Governor Jerry Brown has stated that he wants his tax extension proposals to be placed on a special election ballot by a bipartisan effort. However, Brown and others have hinted that if Republicans don’t go along there may be other ways to put the tax increases before the people with a simple majority vote.

In his column yesterday, the Sacramento Bee’s Dan Walters suggested two ways the majority vote method might be accomplished. One way would be to amend previously passed statutory initiatives. Loren Kaye has expounded on this possibility a number of times on this site.

The second approach would rely on the recently passed Proposition 25, which allows a budget to be passed with a majority vote along with permitting budget implementing legislation to be passed with a majority vote.

But, proponents of Proposition 25 assured us during the election that taxes could not be raised by majority vote under the initiative’s language. When opponents of Proposition 25 (I was one of them) raised the concern that taxes could be raised by a back door majority vote because of Prop 25’s majority vote rules on budget implementation, Prop 25 supporters accused opponents of using scare tactics.

In the ballot booklet circulated by the Secretary of State, Prop 25 proponents stated: “Prop. 25 will NOT make it easier to raise taxes.” Further, proponents noted in the ballot booklet: “In fact, Prop. 25 specifically says, “This measure WILL NOT CHANGE the two–thirds vote requirement for the Legislature to raise taxes.”

Jerry Brown, as Attorney General, wrote the title for Proposition 25 and stated flatly the measure: RETAINS TWO-THIRDS VOTE REQUIREMENT FOR TAXES.

Are we playing with semantics here? The legislature can’t raise taxes by majority vote but by majority vote the legislature can ask the people to raise taxes?

The courts could be put on the spot if a majority vote is used to place tax increases or extensions on the ballot.

The Third District Court of Appeal, in a published decision on the language in Prop 25 to allow for a majority vote tax increase, concluded: “Stated succinctly, petitioners have staked out a position on the continuing vitality of the two-thirds vote requirement for raising taxes from which there can, in the law, be no retreat.”

Interestingly, the court’s decision cited the proponent’s argument that, “Approximately a million voters –having been told that this measure would not affect the two-thirds vote requirement for taxes – signed the petition”; “The claim…that Proposition 25 would allow …. Changes (in taxes) to be adopted by a majority is absolutely wrong…”

Will the courts approve a “retreat” from this principal by allowing a majority vote of the legislature to move a tax increase to the voters?

Using shenanigans and semantics to trick the voters will do nothing more than to further alienate citizens from the political process and act as an anchor on those trying to sell the tax extensions to the voters.

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