Assembly Constitutional Amendment 4 would place on the ballot the question of whether taxes for transportation projects should be approved with just 55 percent of the vote instead of the current two-thirds approval requirement. An affirmative answer to that question would likely result in billions of dollars being transferred from California taxpayers to county transportation agencies in coming years.

Nineteen of California’s 58 counties – known as “self-help” counties – have passed the two-thirds threshold to tax themselves for transportation projects, costing their residents more than $3 billion annually. Many other counties have tried repeatedly to pass tax hikes, but failed to reach 66.67 percent approval.

“These self-help counties have consistently provided reliable and stable funding for transportation – funding that far outstrips state and federal funding on an annual basis,” said the bill’s author, Assemblyman Jim Frazier, D-Oakley, at the Assembly Transportation Committee hearing in April. “Despite the success of these self-help counties, a two-thirds voter approval threshold is a near impossible hurdle for other counties that are aspiring to be self-help counties. As a result, these counties are deprived of much-needed funding for transportation infrastructure, maintenance and operations.”

Frazier also argued that every billion dollars in transportation taxes produces 21,000 jobs. “ACA4 is a common sense measure that will help rebuild our roads while providing a significant economic benefit to our economy,” he said.

He was backed by county transportation officials who have been frustrated at not being able to raise taxes to provide what they consider much-needed improvements.

“We are the only county in the Bay Area that currently does not have its own transportation sales tax at the local level,” said Matt Robinson, representing the Solano Transportation Authority.  “We’ve been out three times to get one of these passed in our county. We’ve come really close. Twice we got more than 60 percent of voter approval in the county, one time as much as 64 percent. So we barely missed it.

“We are looking at going next go-around for a five-year measure. Hopefully, a scaled-back version of that will incentivize the voters in our county to come in. This bill will be a significant step in helping us achieve that goal. We have approximately a $744 million funding gap as projected in the latest Local Streets and Roads Needs Assessment. This bill would help move us closer to finding a local solution to meeting our county’s transportation needs.”

The statewide funding shortfall is $78.3 billion over 10 years, according to the report.

Delaney Hunter, representing the Ventura County Transportation Commission, echoed Robinson.

“We have tried multiple times in Ventura County and can’t get close enough,” she said. “If you’ve been to Ventura, we have lots of needs, we don’t have the money. We are struggling in matching state funds and federal funds. We think it’s the fair question to ask voters: Is 55 [percent] the right number? If voters don’t think it’s the right number, we’ll keep trying it at two-thirds.”

David Wolfe, representing the Howard Jarvis Taxpayers Association, and speaking on behalf of the California Taxpayers Association and National Federation of Independent Business, is concerned about weakening Prop. 13’s two-thirds threshold for raising taxes.

“This does represent a direct attack on Proposition 13,” Wolfe said. “We are talking obviously about sales taxes. We are talking about personal taxes as well. As regards personal taxes, these are very regressive. These taxes are included on property tax bills separate from Prop. 13’s one percent cap. And explains why we are fourteenth in combined state and local per capita property taxes in California.

“But it also applies to [California] sales taxes, which are the highest in the nation. Some municipalities have rates at or near 10 percent in the state. And we just fear that, especially with the expansive list of projects listed here in ACA4, that taxes are going to increase by billions of dollars annually – again in a very regressive way.”

Jeremy Merz, representing the California Chamber of Commerce, began on a conciliatory note, commending Frazier for attempting to find funding mechanisms to improve state transportation.

“We understand how critical California’s transportation infrastructure is to the economy, both for moving goods and moving people, employees, students,” he said. “We understand that the current funding methods are insufficient at this time.

“Our issue with this particular constitutional amendment is that it contains few parameters of how it can be set up at the local level aside from where the funding must go. In particular we worry that it will allow for discriminatory taxes on certain industries, certain businesses, certain products for the purposes of political expediency. We think the two-thirds threshold serves as a bulwark against the majority taxing the minority.

“We respect the point about money for transportation creating projects and potentially jobs. We just don’t think those jobs should come at the expense of an industry or employer that would be a victim of a targeted tax and would have to lay off workers or not hire. We have acknowledged that taxes should be broad-based, such as a broad-based sales tax. If that were the case we would definitely reevaluate any constitutional amendment reducing the threshold. We just don’t think this particular mechanism is the way.”

Frazier responded by pointing out that his bill does not lower the approval threshold to 55 percent, but simply places a measure on the ballot asking voters to decide whether they want to do so.

“They still have the opportunity to turn this down,” he said. “But by telling people that they can’t have that right to be able to make a decision, we are treating them like children. And that shouldn’t be. This is an opportunity. As a transportation commissioner, I have seen the benefits in leveraging state dollars and bond dollars to [close] a [funding] gap that the state cannot fulfill.”

ACA4 is similar to Proposition 39, which was approved in 2000. It allows school facility bond measures to pass with 55 percent approval instead of two-thirds. After the proposition’s passage, three-quarters of school bond measures passed compared to about 60 percent previously, according to Ballotpedia. That resulted in a $2.3 billion increase in bonded indebtedness in California school districts in 2008 over what would have occurred had Prop. 39 not been in effect.

In the June 2014 election, only about half of the tax hike measures requiring two-thirds approval passed, according to a legislative analysis of the bill. But about two out of three measures with a 55 percent threshold for passage were approved.

ACA4 passed along party lines in the Assembly Transportation Committee in April and in the Assembly Revenue and Taxation Committee on July 13. It will next be considered by the Assembly Appropriations Committee.

Denise Cross / flickr

Referendums on legislative actions may be making a comeback in California.

Earlier this week, opponents of Senate Bill 277, the mandatory vaccination measure, began their quest to refer that legislative action to the voters for the November 2016 election. Already qualified to appear on that ballot is a referendum on banning single use plastic bags in the state.

Taking on legislative acts via direct democracy is not so common. The first obstacle is the short 90-day period allowed to gather the necessary signatures. Of course, with the low voter turnout in the last gubernatorial election, the number of signatures needed has dropped. Now, obtaining just 365,880 valid signatures will place a measure on the ballot.

While 49 referendums made it to the California ballot between 1912 and the most recent general election in 2014, 34 of those referendums appeared on ballots prior to the end of World War II. If you dismiss the referendums dealing with Indian Gaming and all the money that supporters and opponents on that issue have to help qualify a measure, since 2002, only two referendums have qualified for the ballot — a health care measure in 2004 and a redistricting referendum in 2012.

Now, we could see two on the next ballot. Maybe more.

Elections analyst, Allan Hoffenblum of the California Target Book, told the Los Angeles Times he thinks the vaccination referendum could qualify. “It’s a minority of people but it’s a sizeable minority of people. I would be surprised if it didn’t qualify. There is a lot of intensity.” Hoffenblum said.

While the measure may qualify, it faces big obstacles to overturn the legislative action. Polls indicate support for mandatory vaccination of school children. The PPIC poll in May found that 67 percent of all Californians and 65 percent of parents of public school children support the mandate. Furthermore, while passionate opponents of the law would be good foot soldiers in an effort to get the measure passed, there remains a question of how much money could be raised to deliver the message statewide.

And, while pharmaceutical companies have claimed a distance from the law, they could play a financial role in any ballot contest in support of the law.

In addition, there is the often difficult to understand requirement that if you are for the referendum but against the law you must vote “No.” The referendum essentially asks if you support the law passed by the legislature, “Yes” or “No.” The question is not whether you support the referendum. Voters can be confused.

Could other referendums come along?

Probably the most well-known referendum in California history was the battle over a peripheral canal. Voters overwhelmingly rejected the canal in June 1982. A proposal in the same vein, Gov. Jerry Brown’s push for Delta Tunnels, could face a referendum if legislation passed to move the tunnels plan forward. (There is already an initiative effort that would require a vote of the people on major projects like the tunnels that is in the works. If tunnel legislation becomes law before the initiative is voted upon, opponents of the tunnels may turn to a referendum.)

Then there is SB350 to cut 50 percent of all petroleum use by 2030. If passed this term, could opposing oil companies mount a referendum and ask voters if they agree?

Other major issues that could arise from the special sessions will not face referendums. If tax increases are passed by the legislature, they will become law without opponents having the opportunity to refer that action to voters.

Article 2, Section 9(a) of the state Constitution prohibits referendums “providing for tax levies or appropriations for usual current expenses of the state.”

Gov. Brown has previously indicated that he doesn’t plan to ask voters about a tax increase this time around, and the voters can’t use the referendum power to demand a vote on taxes.

The case affirms that voters have legislative authority through the initiative process, a powerful boost for initiative lawmaking. Justice Anthony Kennedy, the only Californian on the court, who himself was involved in a California initiative when he practiced law in California, joined the majority.

The case arose when Arizona legislators challenged the right of voters to set the parameters of congressional elections. The U.S. Constitution specifically cites that legislatures are to set the rules of election.

However, the court agreed that the voters can act as legislators.

That’s the way California sees it.

California’s Constitution says, “All political power is inherent in the people.” The next sentence in the Constitution reads: “Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.”  That’s just what the voters did in passing Prop. 20 in 2010 – they altered the system of redistricting in an attempt to find a fairer system for the public good.

In fact, in the California Constitution the right of initiative appears ahead of powers granted the Legislature. And the section on the legislative power granted the California Legislature even acknowledges that, “the people reserve to themselves the powers of initiative and referendum.”

The final paragraph of the majority opinion: “The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elec­tions Clause does not hinder that endeavor.”

The decision is a strong endorsement of the initiative process.

Democratic Assemblymen Evan Low of Campbell and Richard Bloom of Santa Monica have proposed a 12-fold increase in the fee charged to obtain a title and summary for a proposed ballot measure. Low introduced the measure after a public uproar over an outrageous ballot measure that proposed a death penalty for gays and lesbians.

“We live in California, the cradle of direct democracy, but we also need a threshold for reasonableness,” Low said in a press release. “Amending laws and making statewide policy is not something that should be taken lightly.”

The bill, which passed the State Assembly in May on 46-28 vote, is now quickly moving its way through the State Senate.

Sodomite Suppression Act spawns fee hike

Since 1943, any Californian with $200 has been able to obtain the necessary paperwork to begin collecting signatures to put their proposal on the ballot. The reasonable filing fee has allowed average citizens and grassroots organizations to shape the political debate. Often times, the text, title and summary are enough to generate free publicity for an idea, including outrageous and blatantly unconstitutional measures.

Earlier this year, Orange County attorney Matthew McLaughlin paid his $200 filing fee and submitted the necessary paperwork to circulate “The Sodomite Suppression Act.” The proposed initiative would have “put to death by bullets to the head” gays and lesbians as well as banned anyone “who espouses sodomistic propaganda” from holding public office, receiving government benefits or being employed by the state.

Low said that the anti-gay measure inspired his decision to introduce Assembly Bill 1100 to increase the filing fee.

“It’s disturbing to hear that a licensed member of the California State Bar is putting forward a measure that attacks lesbian and gay members in our community,” Low said in a March press release announcing the bill. “But Mr. McLaughlin’s immoral proposal is the just the latest – and most egregious – example of the need to further reform the initiative process.”

Anti-gay measure blocked, filing fee hike remains

Attorney General Kamala Harris refused to grant the measure a title and summary, and instead sought court approval to ignore the initiative. Earlier this week, California Superior Court Judge Raymond Cadei ruled in Harris’ favor, granting her the legal authority not to issue a title and summary.

With the court’s ruling to block the measure, one consumer advocacy group says that the filing fee hike is no longer needed.

“While we have reservations about how the court short-circuited the process, its decision made the bill irrelevant,” Carmen Balber, executive director of Consumer Watchdog, wrote in a letter to state lawmakers. “And, unlike the courts, AB 1100 won’t guarantee an end to similar initiatives. But it will stop legitimate citizen initiatives.”

That position was supported by the Los Angeles Times, which recently noted in an editorial that “the fee should not be used as a tool to make it harder to file undesirable initiatives.” Yet, despite the court’s ruling, Low is unwavering in his mission to pass a 12-fold increase in the filing fee.

“While the court’s ruling on this egregious initiative proposal is both legally and morally the right action to take, the events bring attention to the need to reform the initiative process,” he said.

Right, left oppose filing fee hike

Asm. Evan Low

Even before the court’s decision to block the anti-gay measure, groups on both sides of the aisle expressed concerns that a fee increase could limit the ability of average citizens to use the state’s tools of direct democracy.

Consumer Watchdog, one of the most vocal opponents to the filing fee hike, reviewed filing fees for more than two dozen states that have an initiative process. The overwhelming majority have no filing fee, with just five states charging a nominal fee. Currently, Mississippi has the highest filing fee in the country at $500.

“It’s outrageous that the state that birthed direct democracy would charge its citizens an initiative filing fee that is five times greater than the next highest state – Mississippi,” Consumer Watchdog argued in its opposition letter.

Opposition to AB1100 isn’t limited to Consumer Watchdog. Both the California Taxpayers Association and the Howard Jarvis Taxpayers Association have formally opposed the bill.

The filing fee alone doesn’t put a measure on the ballot. The threshold for qualifying a ballot measure is 5 percent of the total votes cast in the previous gubernatorial election. As a result of California’s record low turnout in last November’s election, that threshold is at its lowest in three decades, but still requires 365,880 valid signatures.

In 2010, a similar proposal passed both houses of the Legislature before it was vetoed by then-Governor Arnold Schwarzenegger. “While well-funded special interest groups would have no problem paying the sharply increased fee, it will make it more difficult for citizen groups to qualify an initiative,” Schwarzenegger wrote in his veto message.

This year’s bill will be heard by the Senate Appropriations Committee on June 29.