California needs clarity on vote requirement for taxes

A judge this week blocked Oakland city officials’ postelection attempt to declare a new tax had passed even though it had failed to receive the stated requirement of two-thirds approval.

If permitted, the moving of the goalposts after the balloting was complete would have amounted to what Alameda County Judge Ronni MacLaren called “a fraud on the voters.”

She’s right. Unfortunately, the fight affecting cities throughout California over what the vote threshold should be for local special taxes, simple majority or two-thirds, remains unresolved.

The dispute centers around a 2017 state Supreme Court ruling interpreting Proposition 218 in 1996 and Proposition 13, the property tax-cutting measure of 1978. A judge in Fresno County and, now, MacLaren have said the high court ruling continues to require that special taxes receive approval of two-thirds of voters for passage. That had been the practice for decades. However, a San Francisco judge has determined that only a simple majority is required.

It will be up to higher California courts to sort this out. The outcome will affect initiatives in communities statewide seeking to raise local taxes for specified purposes — such as building a library, improving fire service, upgrading parks, raising teacher salaries, paying down pension debt or fixing sewers.

At issue in the Oakland case was Measure AA, Mayor Libby Schaaf’s “Children’s Initiative” from the November 2018 election. The well-intentioned, but horribly drafted, 30-year, billion-dollar measure would have levied a $198 annual tax on single-family houses to fund early childhood education as well as mentoring and financial assistance to increase college accessibility.

It received 62.5% of the vote. Disputed special taxes on the ballot last year in Fresno and San Francisco also received more than a majority but less than two-thirds approval.

The uncertainty over the correct vote threshold arises from a 2017 state Supreme Court ruling. In its decision, the high court said a different standard applies to measures put on the ballot by a governmental body like a city council than applies to initiatives, like those in Oakland, San Francisco and Fresno, that qualified through a signature-gathering process.

While that Supreme Court case had to do with election timing, not with the vote threshold, some have argued the legal effect of the ruling is broad. The judge in the San Francisco case agreed: “The requirement of a two-thirds vote applies only to taxes imposed by local governments, not those enacted as a result of voter initiatives.”

But MacLaren and the Fresno judge reached the opposite conclusion. The Supreme Court ruling did not directly address the vote threshold question, MacLaren ruled. “However, to the extent that (it) discusses that issue, it appears to support … that special taxes require a two-thirds vote, regardless of whether they are proposed directly by local government or by voter initiatives.”

The Oakland measure had another problem.

Voters were specifically told by the city attorney in preelection ballot material that Measure AA would require twothirds approval for passage. It was only after votes were counted that the City Council declared that the measure had only needed to surpass a 50% threshold for approval.

The League of Women Voters of Oakland said the council’s “shocking and disappointing” action “undermines public confidence in our elected officials.” The Jobs and Housing Coalition, whose members have contributed millions of dollars to a program that the ballot measure would have also funded, was so outraged that it filed the lawsuit that led to Tuesday’s ruling.

In her ruling, MacLaren chastised the city for changing the rules of the game after the election was over. “Allowing Measure AA to be enacted with less than two-thirds of the votes would constitute ‘a fraud on the voters,’ ” she wrote in her decision.

So, while there is a legitimate battle over the threshold to be fought in San Francisco, where voters were told in advance that a majority threshold would be applied, Oakland’s claim is troubling because voters there originally were told just the opposite.

Councilwoman Rebecca Kaplan wisely advocates that the city drop the issue now. But Schaaf seems to think the ends justify the means, saying through a spokesman Wednesday morning that she wants the city to appeal MacLaren’s ruling.

That would only further erode voter trust.