If Democrats go it alone on taxes, legal battles are certain to follow 

A key factor in Gov. Jerry Brown’s plan to balance California’s budget is whether he and fellow Democrats can do it by themselves, or whether the votes of at least a few Republican legislators will be required.

Politicians and stakeholders are consulting attorneys, but at the moment no one appears to know for certain — in part because the sections of the state constitution involved have never been legally tested.

There is no question that Brown and Democratic leaders want at least some Republican support for placing billions of dollars in income, sales and car taxes on a special-election ballot in June because it would aid the campaign to persuade voters to approve the levies. Brown said it is “much better if this is a bipartisan effort.”

Brown added that he is hopeful Republicans “are not locked in stone in opposition” to asking voters for more revenue by extending temporary taxes that are expiring, although he acknowledges that with strong opposition from anti-tax groups, “they’ll be very hesitant.”

Republicans who voted for the temporary taxes two years ago were hammered by anti-tax groups and radio talkers. So far, GOP leaders have shunned an election to extend them.

If that holds, Brown and his chief legislative partner, Senate President Pro Tem Darrell Steinberg, leave open the possibility of moving ahead without a supermajority vote.

There are two potential pathways for placing taxes on the ballot in June with a simple-majority legislative vote and Brown’s signature.

One would be a section of the state constitution that allows the Legislature to propose amendments to previously approved statutory initiatives. In theory, the additional taxes could be framed as amendments to a previous tax measure, such as Steinberg’s own Proposition 63, which imposed an income tax surcharge on the rich for mental health programs.

Under this theory, the amendment would be passed in the Legislature’s special session on the budget and after a 90-day wait would be placed on a special-election ballot.

The second potential pathway would be Proposition 25, enacted by voters in November. It reduces the legislative vote on budgets from two-thirds to a simple majority and applies the lower vote margin to measures needed to implement the budget, called trailer bills in Capitol jargon.

While the constitution requires a two-thirds vote to enact new taxes directly, would Prop. 25 allow taxes to be placed before voters with a simple-majority vote as a budget-implementation measure?

Lawyers inside and outside government are hurriedly seeking an answer. And since the legal picture is cloudy, if Democrats move on their own, court battles will surely follow.

Dan Walters’ Sacramento Bee columns on state politics are syndicated by the Scripps Howard News Service.

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