San Francisco Tax Fights Once Again Raise the Fairness Issue of a Two-Thirds Vote

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

Based on an interpretation of a 2017 California Supreme Court decision, San Francisco officials believe they have every right to collect and spend tax revenue resulting from ballot measures that received a majority vote rather than a two-thirds vote. The taxes were raised with specific services in mind: housing and homelessness; and child-care and early education services. Opponents say that under both Proposition 13 and Proposition 218 these “special” taxes meant for specific services require a two-thirds vote.

The court’s Upland decision, which I have written about before left the possibility that “special” taxes could pass by majority vote if they were presented to voters via the initiative process rather than by a governmental entity.

The San Francisco move has been countered by lawsuits to prevent the use of the tax money over the issue of the two-thirds vote.

Once again the issue of whether a two-thirds vote is democratic has raised up because of these tax elections. The city says majority rules.

A two-thirds vote has a long history in both California and national political matters, as well as judicial decisions, when overwhelming support is expected to take certain actions.

A two-thirds vote is needed to override a gubernatorial veto. A two-thirds vote is needed to pass local bonds backed by property taxes (a feature of the 1879 California Constitution). A two-thirds vote is needed for the legislature to place a constitutional amendment on the ballot. On the national level a two-thirds vote is needed to approve a treaty, get the ball rolling on a constitutional amendment (with the need of three-fourths of the states to concur) and convict an impeached officer. In courts, a supermajority vote is necessary for certainty to convict, including an unanimous jury vote in capital crime cases.

One of government’s most important powers is to take property in the form of taxes from the people. In many tax elections only a certain segment of the population will pay tax increases. That is true in the San Francisco cases with the taxes placed on the business community. It is fair and proper to require a two-thirds vote to mandate these taxes.

There is another argument to bolster the need for a two-thirds vote for special taxes.  The problem is that earmarked “special” taxes ties local budgets into a knot and takes away needed discretionary decision making powers from local elected officials to spend tax revenue where it is needed.

Beyond that, the reason to maintain the two-thirds vote can also be found in the way modern elections play out. Consider this example as expressed by writer and historian Richard Reeves, no fan of Proposition 13, by the way.

In his book, American Journey, in which he retraced the steps of Alexis De Tocqueville around America, Reeves wrote, “When employees of government — teachers in the public schools were a good example — provided significant campaign funding and volunteer campaign workers to help elect legislators, they were essentially trying to hire their own bosses, the men and women who regulate their numbers, salaries, benefits, and working conditions.”

Then they are likely to get the tax increases they want.

Whether the court’s decision in the Upland case meant to undermine the two-thirds vote in ballot measure elections will have to be clarified by the courts. But there is no question that the reasons to maintain a two-thirds vote will remain.

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