Proposition 5 – A Defeat For Ballot Transparency

by Jon Coupal
President, Howard Jarvis Taxpayers Association

In a few short weeks, California voters will have the opportunity to reject several bad ballot measures which threaten their financial security. The worst of these by far is Proposition 5 because it would lower the vote threshold for local bonds from two-thirds to 55%. The two-thirds vote requirement for local general obligation bonds has been in the California Constitution since 1879 as a protection for property owners against excessive debt that must be repaid in the future, sometimes for decades.

The fact that Prop. 5 reduces the vote threshold is a material fact that voters should know in order to make an informed decision when they cast their ballots.

For statewide ballot measures, the California Attorney General is responsible for preparing a title and summary as well as the ballot label, which is the question that is presented to the voters. The ballot label is the only ballot material that is seen by every voter. Its importance cannot be overstated.

In apparent recognition that the reduction in the vote threshold for local bonds is the central purpose of Prop. 5, the Attorney General acknowledged this proposed change in law for both the title and summary yet, incredibly, not the ballot label even though it easily could have been included without exceeding the 75-word limit.

Here’s what the ballot label says: ALLOWS LOCAL BONDS FOR AFFORDABLE HOUSING AND PUBLIC INFRASTRUCTURE WITH 55% VOTER APPROVAL. LEGISLATIVE CONSTITUTIONAL AMENDMENT. Allows approval of local infrastructure and housing bonds for low-and middle-income Californians with 55% vote. [Fiscal Impact not included].”

The Howard Jarvis Taxpayers Association (HJTA) concluded that the omission constituted a violation of the Elections Code and filed a legal action in the Sacramento Superior Court which has jurisdiction over such ballot language disputes. Not surprisingly, the trial judge, Honorable Shelleyanne Chang, ruled in favor of HJTA finding that the failure to describe the existing vote threshold rendered the ballot label “misleading.” She correctly declared that the reduction itself is the “chief purpose” of Proposition 5 and the Attorney General has a duty to inform the public of a measure’s “character and purpose.” She further explained that a voter might be misled in thinking that the measure “increases” the voter approval requirement from a majority vote to a 55 percent vote.

Judge Chang also rejected the Attorney General’s argument that he was entitled to presume that the voters know existing law and should therefore fully understand Proposition 5 from the language as written. But vote thresholds in California vary significantly depending on the issue. Local special taxes have a different threshold than general taxes and school bonds have an entirely different threshold. To suggest that typical voters know what the current vote threshold is for local general obligation bonds is baseless, especially when few politicians know what they are.

Regrettably, Attorney General Bonta filed an appeal in the Court of Appeal for the Third Appellate District. There, the court reversed Judge Chang’s well-reasoned opinion and concluded that it was within the A.G.’s “discretion” to exclude a critical fact in the ballot label.

Ironically, in agreeing with A.G. that he could assume that voters would know what the current law required, the Court of Appeal also exposed its own ignorance. In its opening discussion of Proposition 5, the court states, “Since the adoption of Proposition 13 following it passage in 1978, local bonds and taxes to support those bonds generally must be approved by a two-thirds vote of electorate.” That’s wrong. The two-thirds vote requirement for local bonds has been a part of the California Constitution since 1879!

Although disappointing, the loss for taxpayers in the Court of Appeal, especially after the victory in the trial court, highlighted the recurring issue of how the ballot material process has been horribly politicized by the Attorney General. That could help in educating voters as to what Proposition 5 really does and the importance of voter education, especially when facing deceptive ballot material.