The tyranny of the minority

In California, it takes just a simple majority of voters to elect a mayor, a governor or even a member of Congress. But it requires a supermajority — two-thirds of the vote — to pass a local tax to fund a specific program, such as street repairs, parks or libraries. This disparity is due to Proposition 218, a 1996 ballot measure designed to make it harder for local governments to raise taxes, fees and assessments.

At least, it used to take a supermajority. On Aug. 28, the state Supreme Court struck a welcome blow to the unreasonably high vote thresholds in Proposition 218, upholding a lower court ruling that the proposition applies only to measures put on the ballot by elected government bodies, not to those sponsored by citizens. This is good news for communities that need to raise taxes for worthy projects, reaffirming the democratic principle that such decisions ought to reflect the will of the majority.

Proposition 218 — which, it must be pointed out, needed only a majority of votes to pass — subverted this principle by requiring cities, counties, school districts and other local governments to obtain the approval of two-thirds of the voters for most proposed tax increases. The sole exception was for taxes that go into a municipality’s general fund to support overall government operations, perhaps because general-purpose tax hikes are a tougher sell than those with a specific goal, such as building housing for the homeless or funding public transportation projects.

The restraints imposed by Proposition 218 reflected its supporters’ belief that local governments had overstepped in their desperation for revenue in the years after voters approved another anti-tax measure, Proposition 13. The lawsuit that led to the Supreme Court’s ruling last week, however, wasn’t primarily a fight over tax rates — it was a battle over whether a marijuana-related initiative could appear on a specialelection ballot in Upland — and did not seek to upend the supermajority threshold. That was a happy accident.

In addition to its supermajority provision, Proposition 218 requires tax and fee measures to appear only on general-election ballots. But the justices held that Proposition 218 didn’t apply to the proposed Upland initiative — despite the fee it would impose on marijuana dispensaries — because it the measure wasn’t voted onto the ballot by a governmental body.

If citizen initiatives are no longer subject to Proposition 218, then they will no longer require a supermajority to pass. As Supreme Court Justice Mariano-Florentino Cuellar wrote in the majority opinion, Proposition 218 "does not constrain voters’ constitutional power to propose and adopt initiatives."

The prospect of a lower threshold is likely to prompt a local initiative to raise taxes in the near future. This is why California Republicans are trying to rush through a bill to put a constitutional amendment on the November 2018 ballot that would explicitly extend Proposition 218 to measures filed by citizens too. Ironically, this effort needs a two-thirds supermajority in the Legislature to get placed on the ballot.

It would serve the GOP right to be tripped up by the same undemocratic hurdle as they would place before citizens trying to raise their own taxes to pay for things they want or need. It’s tough to get two-thirds of a group to agree on what to have for dinner, let alone to make important decisions about public finances. What Proposition 218 did was to give outsized power to NIMBYs and naysayers to thwart the will of a majority of their fellow voters. Call it the tyranny of the minority.

While we applaud this ruling and its implications, restraint is advised. Californians already shoulder one of the highest tax burdens in the country. Nor should local government officials see this an open invitation to advance tax proposals while hiding behind bogus grass-roots organizations. Abuse could well lead to another anti-tax backlash. Remember, it would take only a majority of Californians to pass another law slapping a two-thirds restriction on citizens’ right to tax themselves in local elections.