Massachusetts Supreme Judicial Court Allows Billion Dollar Tax Question to Appear on Ballot, Despite NELF’s Urging That the Ballot Summary of It Will Leave Voters Confused
Anderson v. Attorney General, Massachusetts Supreme Judicial Court
This case is a continuation of an earlier one in which NELF participated. In 2018 we filed an amicus brief in support of citizens who objected to a popular initiative that would have amended the state constitution by overriding its flat tax rate provision for the first time and would have instituted a surtax on personal incomes of more than $1 million. The surtax revenues would have gone to public education and transportation. Agreeing with NELF, the Supreme Judicial Court struck the amendment from the ballot because it dealt with three unrelated public policy subjects (taxation, education, and transportation). Now, just as we had expected, the proposed amendment has been resurrected by the Legislature, which is not bound by the unrelated subjects rule when initiating a ballot question.
This time there are two new objections to it. To accompany the ballot question, the Attorney General must prepare a “fair” summary of the amendment (Summary), and the Attorney General and the Secretary of the Commonwealth must formulate a “fair and neutral” one-sentence statement describing the effect of a yes vote (Yes Statement). Fifty-five voters allege that the Summary and Yes Statement are not “fair.” They claim that both suggest to voters, wrongly, that the new tax revenues would be used only to fund increases in spending on education and transportation.
The wording of the amendment itself invites that view, and not by accident, either. It is the worst kept secret of this case that the text was drafted with an eye to finding a way to overcome the historical resistance of voters to abandoning the flat tax, and the inclusion of those two popular spending priorities was intended to achieve that goal. But the truth is that the revenues would not have to be used to increase those two budgets; they may be used merely to replace dollars now budgeted to them from other sources, with not net gain in spending. Tellingly, the Attorney General admitted as much in the earlier case.
Believing that the plaintiffs are correct and that the Summary is not “fair,” NELF filed a supporting amicus brief. NELF first emphasized that the “key” Summary must be evaluated through the eyes of the “average” voter and must be “fair” in the sense that it gives the ordinary voter a “fair,” informed idea of the main features of the proposed law. In particular NELF noted, quoting Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 325 (1951), that it must not be drafted to be “wholly silent on [an] important point [that] . . . . [a] voter would have a natural interest in knowing,” nor omit information that “a reasonable voter could not fairly infer . . . from the language of the summary as written” (quoting Hensley v. Attorney General, 474 Mass. 651, 662 (2016).
Because a Summary must be evaluated for its impact on the voters, NELF then turned to explaining the context within which many voters would read it. NELF recalled the openly acknowledged decision of the amendment’s drafters to connect, for the first time, a departure from the flat tax to two extraneous but more popular public policy concerns, education and transportation. Exactly as might be expected from the ambiguous language of the amendment itself, surveys link voter support for the amendment to the mistaken belief voters hold that it would fund increases in spending on public education and transportation. Taking advantage of the ambiguity, advocates either assert outright that there would be such increases or they imply it by dwelling on how much education and transportation are underfunded now. “Our transportation and education systems are in desperate need of funding” is a typical example of the latter.
The dead give-away to the Legislature’s true intentions, NELF observed, is that when it was debating whether to put the proposed amendment before the voters, it voted down resoundingly a simple change that would have guaranteed that the revenues would in fact be always used to fund increased spending on education and transportation.
In short, voters have a “natural interest in knowing” the actual budgetary effect of the amendment; surveys show that many of them would view the amendment very differently were the truth disclosed in the Summary as candidly as the Attorney General acknowledged it in the earlier case. The Summary therefore is not “fair” to the voters as it presently stands, and the amendment should not be put on the ballot.