Opinion: Santa Clara County Supes don’t need a shortcut to raise your taxes
SCC Supe Susan Ellenberg claims “citizens initiatives” are essential to funding “critical lifesaving services.” But in an Opp Now exclusive op-ed, HJTA’s Susan Shelley points out how easy it is for elected officials to hide behind “citizens initiatives” to score easy tax hikes. Shelley asks what “critical services” are missing from SCC’s current budget, which already crowds $15 billion?
It has been obvious for a while that government officials are maneuvering behind the scenes to enable tax increases that supposedly are proposed by voters as “citizens’ initiatives.”
The mask is coming off. On Sunday, California State Association of Counties president and Santa Clara County Supervisor Susan Ellenberg wrote an op-ed for the Bay Area News Group complaining about a November ballot measure that would make these “citizens initiative tax increases” harder to pass.
Proposition 43 “would impose a two-thirds approval requirement on local special taxes placed on the ballot through citizen initiatives to fund critical, lifesaving services in their own communities,” Ellenberg wrote.
Who is responsible for funding “critical lifesaving services” in California’s counties? Might it be the county boards of supervisors?
California residents already pay some of the highest state and local taxes in the nation. Santa Clara County’s budget for 2026-27 is $14.7 billion, up from $13.7 billion the previous year.
What’s in it that’s a higher priority than “critical lifesaving services?”
Under the state constitution – Proposition 13 in 1978 and Proposition 218 in 1996 – all local taxes must go on the ballot for voter approval; general taxes pass with a simple majority and special taxes, where the money is earmarked, require a two-thirds vote.
Cities and counties may propose general taxes, pass them with a simple majority vote on the ballot, and then spend the money on the highest priorities. If voters don’t trust their elected officials to spend the money appropriately, those tax increases could be rejected at the ballot box.
Local governments may prefer to propose special taxes for specific purposes popular with voters, but the constitution says special taxes only pass with the approval of two-thirds of voters.
That was the way the law was understood from 1978 to 2017.
Nine years ago, the California Supreme Court suggested, without really deciding, that if a tax increase was placed on the ballot by citizens collecting signatures on petitions, and not by a government body, the constitution didn’t necessarily apply, and the measure didn’t necessarily need a two-thirds vote. The case was California Cannabis Coalition v. City of Upland.
The problem for taxpayers became apparent the very next year, when two San Francisco County supervisors proposed a special tax on commercial property leases to fund early education and childcare. As a special tax, this government proposal would need a two-thirds vote. But the supervisors proposed it as citizens and ran the campaign to collect signatures to place it on the June 2018 ballot. It received 50.8% of the vote. The supervisors declared the measure passed.
Lawsuits followed, but an appellate court cited the language from the Upland case and upheld the tax. The California Supreme Court refused to review the decision, which then led to other appellate courts citing the San Francisco decision and the Upland language to uphold other “citizens’ initiative tax increases” that also had failed to reach the two-thirds vote threshold. The Supreme Court declined to review every case.
This left a jumble of appellate decisions in place that widened the loophole to the point where any tax prohibited by the constitution might be allowable at the local level if proposed by “citizens.” In December, two justices on the Court of Appeal who are on the ballot for retention this year – Armen Tamzarian and Audra Mori – upheld Measure ULA in Los Angeles, writing, “the voters did not generally intend for Proposition 13 to limit their own power to raise taxes by initiative.”
Measure ULA is a real estate transfer tax for a special purpose, a type of tax that California courts had never allowed. But the justices stretched the Upland loophole wide enough to let it through, and with less than a two-thirds vote, because it was proposed as a citizens’ initiative.
Proposition 43 restores the two-thirds vote requirement that is in the constitution, closing the nine-year-old loophole. It’s disingenuous in the extreme for the president of the California State Association of Counties to write that upholding the two-thirds vote requirement “would shatter” a core principle of “democracy.” Does she propose to eliminate the two-thirds vote provisions from the constitution entirely?
California’s 1879 constitution established that local bonds must be approved by two-thirds of voters, fulfilling the command of the 1849 California constitution – handwritten in English and Spanish – that “it shall be the duty of the Legislature” to “restrict” cities’ power of taxation and borrowing money in order “to prevent abuses.”
What would those Gold Rush era Californians have thought about local governments hiding behind a court-created loophole in the constitution to pass local tax increases with fewer votes?
They probably would have agreed with California voters that it shouldn’t be easier to raise taxes. When the Legislature proposed a constitutional amendment for the 2024 ballot that would have cut the vote needed to pass local bonds from 1879’s two-thirds requirement to just 55%, making it easier to raise property tax bills, voters told them to take a hike. Proposition 5 was defeated by a 10-point margin.
Proposition 43 is a simple statement that all local special taxes require a two-thirds vote to pass, regardless of how they get on the ballot.
If elected officials think they can only do their jobs if they have a shortcut to raising taxes, they may be in the wrong line of work.
The voters will decide that, too.
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