Measure C Backers Likely Headed to Court to Argue it Actually Passed
The coalition behind a March hotel-tax hike measure is quietly weighing how it might file a challenge arguing the measure passed despite not winning a two-thirds majority. The state Supreme Court last month effectively allowed a San Francisco citizens’ initiative to pass with a simple majority.
The coalition behind a hotel-tax hike to fund a Convention Center expansion, homeless initiatives and road repairs is likely headed to court to argue the measure passed with a simple majority.
In March, Measure C pulled in about 65 percent of the vote, just short of the two-thirds needed to pass a tax for a special purpose. But last month, the state Supreme Court decided not to relitigate an appellate court decision to allow a San Francisco citizens’ initiative to pass with a simple majority. Measure C supporters had prepared for this possibility as a backup plan by setting it up as a citizens’ initiative in the event that it didn’t receive two-thirds support and courts provided clarity on whether citizen-led measures could pass with just a majority vote.Business and labor leaders who led San Diego’s Measure C campaign have for weeks quietly debated next steps, and San Diego’s two mayoral candidates – both of whom publicly support the initiative – have said they will await word of its fate before they settle on plans for any additional tax hikes to pay for a Convention Center expansion or other city needs.
Last Tuesday, advocates cried foul ahead of a closed-door City Council discussion about what role the city might play in Measure C’s next steps, and argued that the city should not claim that the initiative passed given its directive to voters that it required a super-majority.
There were no public announcements about the outcome of that discussion. But the coalition is quietly weighing how it might file a challenge.
Key campaign backers who are also leaders at the Chamber of Commerce, San Diego Tourism Authority and San Diego & Imperial Counties Labor Council would only say in a statement that they remain committed to Measure C.
“Measure C was overwhelmingly supported by San Diego voters in March, and we believe the will of the people — both the voters and the citizens who placed Measure C on the ballot — should be enacted,” Jaymie Bradford, Daniel Kuperschmid and Keith Maddox wrote in a statement emailed to Voice of San Diego.
They declined to specify how that might work.
City Attorney Mara Elliott’s office has also said it cannot elaborate on what the City Council decided in last week’s closed session.
But Elliott spokeswoman Hilary Nemchik told VOSD that the state Supreme Court’s September decision left the City Council with a couple options.
“The city could initiate its own lawsuit asking the court to determine whether Measure C passed. The Council could also take no action at this time and wait to see if the Measure C proponents file a lawsuit seeking to confirm the applicable vote threshold,” Nemchik wrote in an email to VOSD.
For now, the City Council seems inclined to put the ball in the Measure C coalition’s court.
Attorney Gil Cabrera, a Measure C supporter who said he has not recently spoken with the campaign about its legal strategy, said the coalition could sue City Clerk Liz Maland, arguing that she should have certified Measure C as victorious with a simple majority vote. It could also file a suit directing Measure C supporter Mayor Kevin Faulconer and the city to start collecting the increased hotel tax, a prospect that could prove more complicated during a pandemic that has devastated the region’s tourism industry.
Whatever the coalition does, Cabrera said, a decision won’t come quickly. The case will need to first make its way to Superior Court and then likely snake its way through the appeals process.
If Measure C proponents proceed, opponents are almost certain to pounce.
Andrea Guerrero, executive director of Alliance San Diego, argued before the private City Council discussion last week that the city should not waver from Elliott’s pre-election decision that the measure required a two-thirds vote. Alliance San Diego previously challenged Measure C’s ballot description in court.
Los Angeles attorney Fredric D. Woocher also submitted a letter to the City Council on Alliance San Diego’s behalf noting that voters were informed of the two-thirds requirement in ballot materials and the city clerk’s initial April certification language while San Francisco officials took the position that the city’s Proposition C could and did pass with a simple majority.
“The voters were explicitly told that a two-thirds vote was required for the passage of Measure C,” Woocher wrote. “For the City Council now to take the position — after the initiative failed to reach the two-thirds vote threshold — that Measure C nevertheless passed because it received a majority of the vote would upend voter expectations, violate voter trust and undermine the will of the voters.”
The San Diego City Council had already voted in April to amend language in the clerk’s certification so it wouldn’t state the two-thirds requirement, at the request of Measure C supporters.
Guerrero told VOSD she believes a lawsuit by the coalition would be crippled by Measure C backers’ failure to take legal action before the March election or in the 60 days after the city clerk certified the election.
“They let that time period expire, that statute of limitations expire. So not only does case law not support a change in the threshold after the fact but the proponents have failed to bring this argument forward in a timely fashion,” Guerrero said. “We’re now eight months after the election. In another week, it will be two elections that will have passed. It just becomes a longer and longer hail Mary throw.”
Cabrera argued the Supreme Court’s September decision not to hear the San Francisco case rendered the usual timeframes moot. Before then, he said, there wasn’t a clear case to be made.
“The issue wasn’t ripe for a court to consider,” he said.
Indeed, attorneys and politicos across the state have been closely watching the courts following a blockbuster 2017 ruling that suggested citizens’ measures – as opposed to those introduced by government entities – are not constrained by the California Constitution’s requirement that two-thirds of voters must approve them.
The 2017 ruling opened up the possibility that citizen-backed ballot measures could pass with a simple majority and inspired the Measure C coalition to assemble rather than have Faulconer lead a similar version of the measure that he failed to get on the ballot in 2017.
Since then, political insiders have been waiting for the state Supreme Court to weigh in, a step the court took last month by deciding not to take up an appellate court decision to allow a San Francisco measure to pass without a two-thirds vote.
Those insiders include mayoral candidates Barbara Bry and Todd Gloria, who said at a VOSD town hall that they will wait to see how the measure fares before advocating for other hotel-tax measures.
“We’re not quite sure if it’s legal. If it’s legal, it will provide money to the city general fund for homelessness and infrastructure, which would free up other money for other purposes such as Balboa Park,” Bry said. “And if it’s not found legal, there’s things going forward that we could consider depending on how the economy looks.”
Bry didn’t elaborate on what she might advocate.
Gloria said he is “rooting for Measure C” but will advocate taking another stab at funding a Convention Center expansion if the initiative dies – and perhaps add a pitch to use city hotel taxes to support parks.
“Expanding our Convention Center is critical for our regional economy and so, as your mayor, I would have the responsibility to have a Plan B ready to go,” Gloria said.