Soak-the-‘Rich’-Pitch Heads to Nov. Ballot


The Supreme Judicial Court rejected the latest legal challenge to the blockbuster ballot question asking voters if they support a new surtax on household income above $1 million, ruling Wednesday that the summary Attorney General Maura Healey has prepared for the ballot is fair and suitable to be presented to voters.

The high court's ruling clears the way for a summary and statements of what a 'yes' and 'no' vote would do that were prepared by Healey, a surtax supporter who expects to be on the ballot herself as a candidate for governor, to be printed alongside the question when it is put before voters this November. The surtax is estimated to bring in $1.3 billion a year and the text of the amendment calls for the revenue to go towards transportation and education.

Opponents of the surtax proposal argued that the summary and 'yes' and 'no' vote statements that Healey prepared for Secretary of State William Galvin to include in a voter information booklet and on the November ballot itself were unfair and misleading largely because they do not explicitly state that the Legislature retains the ultimate decision-making power over state spending and theoretically could use money the surtax brings in to supplant existing state funding for transportation and education.

At least three market-oriented groups were quick to criticize the ruling and Healey’s text. The Pioneer Institute said the SJC, ‘missed an opportunity to reaffirm a basic tenet of American government: An informed electorate is necessary for a healthy democracy.’ They warned that the SJC’s decision will prevent Massachusetts voters from having an accurate description of the tax hike amendment to the state Constitution when they cast their ballots in November.

PioneerLegal filed an amicus brief in support of the lawsuit challenging the Attorney General’s summary language and “yes”/”no” statements that describe the amendment.

The proposed amendment to the state Constitution would add a 4 percent surtax on all annual income over $1 million, including capital gains (sales of homes and other assets) and most small business pass-through income. The proposed summary language put forward by the Attorney General and the Secretary of State reads that revenue from the tax would be dedicated to fund public education and transportation.

“While revenue from the tax would be deposited in transportation and education accounts,” said Frank J. Bailey, President of PioneerLegal, “there is nothing to prohibit lawmakers from diverting money previously dedicated to transportation and education to different purposes, as has occurred in other states.”

Speaking about the need for transparency in the constitutional amendment process, Bailey noted that: “a ballot initiative that seeks to amend the Massachusetts Constitution must be fairly described to voters. Absent an accurate summary of the effect of this vote, homeowners, small business owners, and retirees may well be surprised by the implications of a vote in favor of the amendment. Voters should never be surprised.”

More than 50 plaintiffs had joined in the suite challenging the Attorney General’s failure to propose ballot language fairly and accurately summarizing for voters the proposed Amendment.

We are disappointed in the Court’s decision to not require that the Attorney General clarify for voters the true nature of the Amendment. At the same time, our litigation has succeeded in an important way: it has revealed, beyond any reasonable dispute, that the Amendment, if adopted by voters, would not require increased spending on education and transportation.

“Plaintiffs filed this lawsuit to ensure that voters accurately understand what they are voting for in November—our Constitution and basic principles of good governance require no less,” said Kevin Martin, partner at Goodwin Procter and counsel for the Plaintiffs. “The parties all agreed that the Legislature can use the money raised by the new tax to increase spending on whatever it wants. The Court did not disagree. Plaintiffs are disappointed that the Court will nevertheless allow this misleading proposal to go before voters without the fair and accurate summary our Constitution requires.

”It is vital that voters understand this point: The Amendment will not necessarily lead to increased education and transportation spending. How to spend the new revenue would be entirely up to the Legislature. Any contrary suggestion from proponents would conflict with Attorney General Maura Healey’s position in this litigation,” Martin Continued.

The Fiscal Alliance Foundation also weighed in on the decision. “When Massachusetts residents are asked to make decisions on questions like these, the text of the question and the accompanying information put before them should always be unimpeachably truthful and unbiased. In the case of the legislature’s income surtax amendment ballot question, the Attorney General, the Secretary of the Commonwealth, and the Supreme Judicial Court have all dropped the ball. The language being used to describe the question is extremely leading,” said Paul D. Craney, spokesman for the Alliance Foundation.

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