What Really Happens if Both Prop 30 and 38 Pass in November?


There's an argument that runs like this: If people vote for only one of the two income tax measures in November, then both are more likely to fail, and if both fail, then woe be it to students and teachers across the state. It's better, then, to vote Yes on both.

The argument refers to propositions 30 and 38, both of which aim to increase the personal income tax in California and use the extra revenue to help pay for education. If neither one passes, public schools would face cuts of more than $5 billion, and that's in addition to the decreases they've already experienced.

That scenario is a scholastic apocalypse to organizations like Educate Our State, a grassroots nonprofit that advocates for better collaboration in fixing and improving public schools.

"Our opinion is that it's very dangerous to send the message that these [two ballot measures] are competing," said Crystal Brown, the organization's board president and a parent of three daughters in the public school system.

Media outlets, KCET's Ballot Brief included, have framed the story as a battle between supporters of Gov. Jerry Brown, who spearheaded Prop 30 to help close the state's yawning budget gap, and Molly Munger, the wealthy civil rights attorney who has bankrolled Prop 38 almost single handedly. That narrative thread, as accurate as it may be, is beside the point for Brown of Educate Our State.

"I think what's really important is that passing taxes in California is really hard, so dividing this vote is sort of the wrong message. People can vote yes on both, and we would be in the best case scenario if both passed," Brown told me in a recent interview by phone.

Voters in fact do have the option to vote Yes on both measures, a strategy that could help to secure for each some of the votes that may otherwise have been lost to the "competition." It's a strategy that could increase the probability that at least one of the measures passes, but the question remains: what really happens if both pass?

The immediate answer is that the one with the most votes will prevail, and the other will be thrown out. That's in part because the state Constitution spells out what to do in such cases, but also because each measure contains a clause that would nullify the other should they both pass. But there's more nuance to it than that.

Brown argued that whichever gets more votes, the winning measure only precludes certain provisions -- and not the entirety -- of the losing measure from going into effect. That means a dogged proponent could pick through the pieces like scrap from the scrapyard and try to salvage what remained, possibly even fighting in court to get the parts worked into the winning measure.

For instance, in addition to the income tax hike, Prop 30 calls for an increase to the state sales tax to fund local public safety programs. If 30 were to pass but get fewer votes than Prop 38, it stands to reason that the income tax hike and the education funding tied to it would get the axe, while the sales tax and the public safety funding could pass into law.

That line of thought may amount to wishful thinking, or it may be sound strategy. It's tough to say.

Representatives of the California Legislative Analyst's Office, which is charged with providing nonpartisan fiscal and policy analysis of state bills and voter initiatives, would not surmise either way. Their official assessment is included in the voter information guide in a special pullout box under the heading, "What Happens if Voters Approve Both Proposition 30 and Proposition 38?" Their answer is the same as the one given earlier, that the measure with the most votes prevails.

"Could pieces survive? That's something that would need to be interpreted," said Edgar Cabral, the principal fiscal and policy analyst for the LAO.

It's unclear whether the Franchise Tax Board or courts would simply step in to decide which pieces are valid, or whether someone would need to file a formal complaint first. Either way, that scenario could spell delays and ratchet up the ultimate cost of the election. But Jason Sisney, the deputy legislative analyst, said there would be incentives for courts to act very quickly.

"Prop 30, for instance, would affect 2012 income taxes, so the state Franchise Tax Board would have a lot of interest in moving quickly in regard to putting together tax forms," Sisney said.

In any case, compared to the $5 billion at stake for schools, the amount spent figuring out what to do if both measures pass would probably look like pocket change.

Sisney may also have offered the most honest observation possible of this tax measure showdown when he prefaced our conversation this way: "I don't know if we've had quite this situation with two high-profile tax measures. So we don't know quite what would happen."

Neither campaign is actively encouraging people to vote for both measures. Nor are they going out of their way to harm each other.

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"We don't want to poison the atmosphere around tax measures. That doesn't make any sense for us, because we're a tax measure," said Nathan Ballard, a campaign strategist for Prop 38.

Still, the Munger camp does seem to view the contest as winner-take-all.

"Our position is, as awful as it is to contemplate, if we get one fewer vote, it's our understanding that Prop 30 would go into effect, not prop 38," Ballard said.

Meanwhile, at least one major stakeholder in the Prop 30 campaign has indicated that they believe they could still eke out a partial victory if their measure passes but gets edged out by 38.

"If Prop 38 gets the most votes, presumably the income tax portion of theirs goes into place. However, that still leaves the sales tax portion of Prop 30," said Fred Glass, communications director for the California Federation of Teachers, which is one of the biggest financial backers of the measure.

Glass acknowledged that if push comes to shove, they would be willing to go to court to salvage what they can of the measure.

In the end, though, electoral strategies like the one proposed by Educate Our State exist precisely because we cannot predict the future. Vote for both, vote for one, or vote for none. It's your decision.

Top Photo: Justen Eason/Flickr/Creative Commons License

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