Proposition 43, sponsored by the Howard Jarvis Taxpayers Association, may seem pretty basic. It is a constitutional amendment that would restore the two-thirds vote requirement to enact all local “special taxes” intended to fund a specific, designated purpose, such as public safety or libraries.
But the ballot measure is more accurately seen as Howard Jarvis giving voters a chance to tell the California Supreme Court to take a hike — to stop sabotaging popular state laws that create obstacles to newer and higher taxes. Just as Republican-appointed U.S. Supreme Court justices tailor their legal rulings to meet broad conservative objectives, some of the state supremes’ most important rulings feel contrived to achieve the goals of the liberal Sacramento establishment.
An obvious example is the court’s contrary rulings on citizen initiatives, which have long since lost their noble patina of being a way for voters to use “direct democracy” to overcome special interests. Instead, as political scientists and journalists have documented for decades, such measures are routinely stage-managed by powerful forces — unions, business organizations and, yes, elected officials.
Sometimes the state’s justices choose to ignore this history. Sometimes they emphasize it.
In a 2017 case involving a ballot measure related to cannabis dispensaries in the city of Upland, the court, on a 5-2 vote, drastically changed how the judicial system interpreted voter-approved state laws, especially Proposition 13 — the landmark 1978 legislation that kicked off a national taxpayer rights movement. The majority held that since the measure reached the ballot because of a citizen signature-gathering campaign — instead of the direct action of a local government body — simple majority support was necessary for enactment, not the two-thirds vote specified in Proposition 13.
Why? Because, per Justice Mariano-Florentino Cuéllar, courts must “liberally construe the public’s statewide and local initiative power.” Yet it was literally undisputed that the Upland measure reached the ballot not because of a backlash to City Hall machinations from residents but because of a well-funded effort by a cannabis trade group.
But in 2018, the state high court unanimously agreed that a 2012 ballot measure approved by a huge majority of San Diegans that ended defined benefit pensions for most new city hires should be invalidated. Why? Because the fact that 116,000 city residents signed the petitions to put the measure on the ballot was tainted by the strong support of then-Mayor Jerry Sanders, who was depicted as trying to get around laws that require the city to collectively bargain changes in employment terms.
What he was trying to get around was the fact that the City Council majority, allied with unions, bitterly opposed pension changes despite compensation costs eating up a massive and growing chunk of city budgets. As former City Attorney Jan Goldsmith wrote, “Never in the history of California has there ever been a requirement to negotiate with labor unions over terms of a citizens’ initiative placed on the ballot by voter signatures.”
These rulings can’t be squared. The state Supreme Court treats the citizen initiative process as a sacrosanct part of state government that must be “liberally construed” when it comes to allowing tax hikes on a simple majority vote. But when it comes to a campaign to contain pension costs, it is collective bargaining laws that must be “liberally construed” — not “the public’s statewide and local initiative power.”
Perhaps this background won’t make much difference to voters with one of two basic, contrary opinions: “It needs to be difficult to raise taxes in California” and “It shouldn’t take supermajorities to raise taxes.” But we raise a third crucial consideration: Checks and balances are essential to government — whether in response to executive, legislative or judicial abuses of power. A vote for Proposition 43 is a rebuke to a court that amply deserves it.