Still a long way from clarity

This is no way to resolve an election in which more than 61% percent of San Franciscans made their intention clear, with neither doubt about the accuracy of the count nor any other allegations of irregularities. The only question was whether the threshold was passage should be a simple majority or twothirds vote.

That question moved a significant step toward an answer Friday when a Superior Court judge agreed with City Attorney Dennis Herrera’s office that two tax measures from last year required only a simple majority. November’s Proposition C, taxing the city’s largest businesses to raise $300 million a year for housing and services for the homeless, received 61.3% of the vote; June’s Proposition C, taxing commercial landlords to raise $146 million a year for child care programs, received just under 51% of the vote.

The delegation of the outcome to the courts was regrettable but inevitable because of the ambiguity about whether initiatives resulting from citizen petitions are subject to same same threshold as those put on the ballot by elected officials. Two constitutional amendments passed by state voters decades ago (Propositions 13 and 218) had set a twothirds standard for tax increases.

The state Supreme Court has not directly addressed this issue. But its 2017 ruling on an Upland (San Bernardino County) cannibastax measure that citizen initiatives can be decided in a primary election — instead of a general election, as required of governmentsponsored measures — was interpreted by Herrera as a green light for citizen initiatives to pass with a simple majority.

This dispute goes beyond San Francisco. Across the bay, 62.4% of Oakland voters last year supported Measure AA, a $198 parcel tax increase to raise $30 million a year for preK through college readiness programs. Unlike Herrera, Oakland City Attorney Barbara Parker had interpreted state law as requiring a twothirds vote for passage — which underscores the lack of clarity in state law. The Oakland City Council nevertheless certified Measure AA’s passage, but voted 52 to hold off collecting the tax until the court challenge is settled.

San Francisco is collecting those taxes, though not spending the money until they get a final goahead from the courts. That could take years, with business and antitax groups promising to appeal Friday’s ruling.

The status quo is unfair all around. For individual voters considering the merits of a new tax, the threshold for passage might not make any difference on what they decide. It makes a huge difference, however, to the approach of a campaign. The twothirds barrier is daunting even in the most progressive of cities. It requires a greater infusion of money for voter education — and more intensive collaboration with potential opponents.

Indeed, one of our criticisms of Prop. C, for all our concern about the homelessness crisis, was the deficiency of accountability on the $300 million surge in spending and the absence of input from all relevant interests in the ballot measure. If faced with a twothirds threshold, the advocates of Prop. C might have gone to greater lengths to address those issues.

But fair is fair. The Prop. C campaign was assured by the city attorney’s office

before the election that it needed a simple majority to prevail. It did. It would be eminently unfair for the courts to invalidate that result after the vote, especially with all the ambiguity in the law.

It seems likely that either side that loses the court case will go back to California voters to make state law crystal clear. The unfortunate reality is that campaigns in the meantime are certain to face two battles, one at the ballot box and the other in courts.