California is known for its numerous propositions that allow voters to approve or reject measures that citizens or State government officials want to appear on ballots. Between 1910 and 2022, 1,293 such measures have appeared. The most famous of these is likely Proposition 13 (Prop 13) which passed in 1978 and required the State to “roll back” most real property taxes to 1975 levels and limited future hikes to one percent plus some local funding. Howard Jarvis led the fight for Prop 13 and though he is no longer alive, the Howard Jarvis Taxpayers Association (HJTA), a local non-profit lobbying and policy organization is, and it fights on today.

A new law proposed by state legislators as Proposition 5 (Prop 5) would amend the California Constitution in the area of revenue-raising through bonds. The HJTA did not challenge the ballot language or summary but focused on the misleading nature of its “ballot label,” which says the Proposition “ALLOWS LOCAL BONDS FOR AFFORDABLE HOUSING AND PUBLIC INFRASTRUCTURE WITH 55% VOTER APPROVAL. LEGISLATIVE CONSTITUTIONAL AMENDMENT. (Caps in original). It fails to mention that the current requirement is 66%.

A ballot label, according to the California Election Code, is “a condensed…title and summary that includes a financial impact summary.” HJTA challenged the wording of Prop 5, which was proposed by the State legislature and written by California’s Attorney General (AG), Rob Bonta. The HJTA petitioned the court for a change in Prop 5’s ballot label, claiming it would mislead voters because it failed to disclose that current law requires a larger two-thirds majority to pass. They argued that the ballot label “failed to accurately describe the measure’s real purpose,” which was to “reduce the voter approval requirement,” and that it would therefore “mislead voters by withholding ‘vital information’ with no valid reason for doing so since the word limit for the ballot label is not an impediment to providing such information.”

Sacramento County Superior Court Judge Shelleyanne W.L. Chang agreed with HJTA, and she granted relief in a formal order mandate and replaced it with a new order that directed Bonta to revise the ballot label language to include additional clarification. Bonta appealed, saying that current case law “establishes that voters are presumed to know what current law is,” and he sought a writ of mandate from the Third District Court of Appeal. Acting Presiding Justice Ronald B. Robie reversed Chang’s decision on August 13.

Robie said, “Not only is the language in the ballot label factually accurate, but we fail to perceive how a voter would not correctly construe the purpose of the proposition even if only reading the ballot label in isolation.” In addition to the ballot label cited above, Prop 5 also says that in addition to funding low- and middle-income affordable housing, funds would be used to improve public infrastructure for water, roads and fire protection. The text below the ballot label also says that it must be “approved by 55% of voters, rather than the current two-thirds approval requirement.”

Although this explanatory language is not part of the ballot label, it is still part of Prop 5’s explanatory text. Ballot language also says that bonds must “include specified accountability requirements, including citizen (sic) oversight committee and annual financial and performance audits.” The final sentence, once again says it “Allows local governments to assess property taxes above 1% to repay affordable housing and infrastructure bonds if approved by 55% of voters instead of current two-thirds approval requirement.” HJTA argued the omission was “easily remedied by changing the label to refer to the “current two-thirds approval requirement.”

Bonta faced one additional obstacle to obtaining his writ. He missed the deadline set by California’s Secretary of State and State Printer, the real parties in interest, who needed final ballot language by August 12 in order to meet printers’ needs. The Third District declined ruling in favor of HJTA due to the missed deadline because, “there is sufficient time to act on the current petition, considering the issues raised and procedural context.” They said…”the minimal delay of one day past August 12, 2024, occasioned by the temporary stay will not substantially interfere with the timely printing and distribution of ballot materials.”

The Third District Court of Appeals then turned to the merits of HJTA’s case. The opinion cited several precedents that said the AG must give “a true and impartial statement of the purpose of the measure, must reasonably inform the voters of the character and purpose while avoiding misleading the public with inaccurate information…” The Court added that precedent says the AG “is afforded considerable latitude.” Bonta was also charged with exercising ‘judgment and discretion” and must prepare the information “in clear and understandable language.” He did so.

The opinion concluded by saying that according to precedents, the reviewing court shall issue a peremptory writ of mandate “only upon clear and convincing proof” that the “copy in question is false, misleading, or inconsistent with the requirements of” Election Code § 9092. Using these parameters, the Court said these standards were all met. The language submitted by Bonta was “factually accurate” and the court said it “fail the proposition even if only reading the ballot label in isolation.” (italics in original)

The opinion also believes Prop 5 had “concise language that is easy to understand,” and Justice Robie wrote that the ballot label, the title, and the summary points “should be read together,” and if this is done, “a title was not likely to create confusion because of language found in the summary.” He concluded, “The fact that the Attorney General included language in the title and summary that is omitted in the ballot label is entirely consistent with his discretion and the statutory requirement that the label be a “condensed version of the ballot title and summary.”

The number of voters who will actually read all the parts of the ballot description, or any other ballot proposition, is unknown. But this case clearly teaches that all of us should.