Was Measure ER, the Los Angeles County sales tax increase that passed in June with barely above 50%, too deceptive to be legal? A recently filed lawsuit seeks to invalidate the tax that took effect on October 1, making that argument. On September 30, the county said in a statement that the tax will be collected, but the money from it will stay in an account until the lawsuit is resolved.
This has infuriated the groups that backed the tax and expected to see the money. Jim Mangia, the president and CEO of St. John’s Community Health, told this newspaper in an emailed statement that the lawsuit “seeks to disrespect the will of L.A. County voters,” is “frivolous” and was “filed by a fringe, MAGA-aligned group.”
It was filed by Libertarian Shawn Osborne and the Libertarian Party of Los Angeles County. Take my word for it – Libertarians are MAGA-aligned the way a Grateful Dead concert was a Nixon rally.
The lawsuit cites nine causes of action, including that the 0.5% sales tax increase exceeds the cap in state law, and that a law exempting the tax from the cap is unconstitutional. That law was Assembly Bill 1768. It barely passed in the state Legislature and was signed into law by Gov. Gavin Newsom on June 1, one day before the election in which Measure ER was on the ballot.
Another problem for the tax: the Board of Supervisors made it a general tax, which can pass with a simple majority, but told voters in the ballot materials that the intent was to spend the revenue on a very specific list of healthcare priorities. According to the lawsuit, this general tax could be “deemed” a special tax and it would need a two-thirds vote to pass, which it certainly did not get.
The eighth cause of action states that voters were misled by the letter designation “ER,” which seems to suggest “emergency room,” aligning with the campaign advertising message that the tax increase was needed to keep hospitals and emergency rooms open. The lawsuit asserts that this “profoundly misled the electorate.”
The ninth cause of action seeks a ruling from the court for elections in the future, “a declaration that Elections Code section 13116 requires COUNTY Elections Official Mr. LOGAN to designate ballot measure letters that are neutral, unbiased, and not misleading, especially for general tax measures.” That refers to Los Angeles County Registrar of Voters Dean Logan, who is being sued in his official capacity along with the county.
I wish the Libertarian Party great success in this lawsuit, but it’s likely that the California courts will ultimately rule that the voters were deceived fair and square.
Although Measure ER is a general tax that the county government can spend on anything, it was packaged up for the ballot with a (non-binding) spending plan that purported to direct the revenue from the tax – about $1 billion per year – to very specific healthcare priorities. The trick was the word “intent,” as in, “we intend to spend the money on healthcare, but you can’t hold us to it.”
That meant the tax could pass with fewer votes, which is exactly what happened. In fact, on election night, “No” was leading with a little more than 53% of the vote. “Yes” caught up in the week following the election and eventually prevailed with 50.64% when all the ballots came in.
In California, all local taxes have to go on the ballot for voter approval. That important taxpayer protection has been part of the state constitution ever since Proposition 13 put it there in 1978. This requirement has spawned an industry of consultants and experts skilled at manipulating voters into approving tax increases.
To the extent that this happens in a political campaign, all’s fair in love and war. What’s not fair, and what shouldn’t be legal, is deception by government officials.
A general tax shouldn’t be framed as a special tax, named to align with campaign messaging, and presented on the ballot as a guarantee of funding for an urgent priority when the “urgent priority” part is merely advisory.
If the lawsuit prevails, the county says it will issue refunds. Keep your receipts.
Write Susan@SusanShelley.com and follow her on X @Susan_Shelley