A recent opinion piece in the Voice of San Diego argues that the San Diego Citizens’ Plan ballot measure will require that two-thirds of the voters, rather than a simple majority, approve it for the measure to go into effect. The piece also asserts that the Citizens’ Plan embraces more than one subject and that voters should not be able to vote on it at all.
These two assertions are unsupported by the facts and law.
As an election law attorney for more than 25 years who has represented dozens of ballot measures, officeholders, businesses and others in San Diego, I must respectfully disagree with April Boling’s conclusions. Not only does the Citizens’ Plan embrace a single subject – the responsible management of the city’s major tourism and entertainment resources – but it does so by enacting a general tax, which requires a majority and not a two-thirds vote.
Those claiming that the Citizens’ Plan requires a two-thirds vote are presumably reacting to a carefully drafted portion of the measure that enables hotels to voluntary avail themselves of tax credits by spending funds to promote San Diego as a tourist destination and/or expand the Convention Center. When one delves more deeply into the measure’s terms, however, it becomes apparent that a simple majority vote, and not a two-thirds vote, is required.
The two-thirds vote requirement, which Boling refers to as a “wonky campaign finance topic,” is actually a simple legal concept.
“General taxes” are those that the City Council may use for any governmental purpose and require a majority vote, whereas “special taxes” are imposed for specific purposes and require a two-thirds vote. A sales tax increase, which generates unrestricted revenue, would be a general tax, whereas a sales tax increase earmarked for transportation improvement would be a special tax.
Among the reasons the Citizens’ Plan enacts a general tax and requires only a majority vote are: whether hotels will avail themselves of the tax credits to promote tourism and expand the Convention Center is completely voluntary and by definition not yet known, and there is no guarantee of any funding, or any particular amount of funding, for these specific purposes; any hotel tax revenues deposited into the general fund will be used for general governmental purposes as determined by the Council, and not for any specific purpose; and the Citizens’ Plan does not constitute “ballot box budgeting” of the type implicated when voters are asked to approve a tax to be used for a named purpose, does not tie the Council’s hands relative to spending and does not involve any bonds or indebtedness.
Boling correctly notes that bond measures, where voters are asked to approve the city borrowing money for a specific purpose such as building a new library, require a two-thirds vote – but the Citizens’ Plan is clearly not a bond measure and does not ask voters to approve the city borrowing any money.
A California appellate court recently concluded that a 10-cent government-imposed surcharge on paper bags in Los Angeles County was not a tax, special or otherwise, even though stores were required to use the proceeds to promote re-useable bags and related specific purposes. That court focused on the fact that the proceeds from the paper bag surcharge never went into the county’s coffers – just as any money spent on tourism or the Convention Center under the Citizens’ Plan does not go into the city’s coffers.
The claim that the Citizens’ Plan embraces more than one subject also lacks factual or legal support. The plan’s elements are reasonably germane and relevant to a common theme and purpose. By raising the hotel tax, enabling hotels to make use of tax credits, and its other related provisions, the plan supports the city’s major tourism and entertainment facilities. Voters get the big picture – and courts more often than not conclude that ballot measures, even those that have varied collateral effects, contain a single subject. Courts especially trust voters where the various effects are linked in the public discourse, as is the case with tourism, the Convention Center, the stadium for the City’s football team and the other inter-related matters addressed by the plan.
The voters will decide whether the Citizens’ Plan is good public policy. They should also be given accurate information about the legal aspects and ramifications of this important measure.
Jim Sutton is a political and election law attorney and the managing partner of the Sutton Law Firm. You can reach him at jsutton@campaignlawyers.com.