Thomas D. Elias: Tax hike's top of ballot position still no guarantee of success

Gov. Jerry Brown took great pains trying to ensure his tax increase proposition would be listed first on the November ballot, acting on the presumption that placement would make it more likely to pass.

That's about as flawed an assumption as exists in California politics.

For nothing in the past history of California initiatives suggests the top slot on any ballot means a thing. No wonder Nathan Ballard, spokesman for billionaire liberal activist Molly Munger's rival proposition to tax only the rich, and then only to support schools, was sanguine after that measure's court appeal to toss Brown's plan out of the top slot was quickly thrown out of court.

"We're moving on," said Ballard, adding there would be no appeal from his side. "No matter where we end up on the ballot, the fact remains that our measure will reboot California's public schools by sending $10 billion a year into a separate trust fund for education that can't be touched."

Of course, conservative anti-tax activist Jon Coupal's Howard Jarvis Taxpayers Association quickly announced it would appeal the Brown measure's ballot slot, and that case is pending.

Only hours after Coupal announced that appeal, Secretary of State Debra Bowen announced the numbers and order of the fall propositions. Brown's will be listed first as Proposition 30, unless the courts order otherwise because he managed to insert a clause in the latest state budget bill guaranteeing proposed state constitutional amendments like his get numbering precedence over measures that seek merely to change or create laws.

Munger's measure will be Proposition 38. Perhaps a more important number is the $88 million raised to support her plan — almost all from her own pocket — by mid-July, compared with $80 — that's not a typo, 80 bucks — raised to oppose it.

The wrangling over proposition numbers is a classical example of a tempest in a teapot, fighting over meaningless trivia. For in statewide elections going back to June 2006 — the last seven elections — four of the measures listed first lost. (All results can be found on the secretary of state's website, www.ss.ca.gov.)

One of those was the 2009 Proposition 1A, then-Gov. Arnold Schwarzenegger's attempt to plug California's persistent budget hole with a temporary four-year tax hike worth $16 million.

Because there were no other major contests in that special election, staged in May, turnout was light and the measure lost by a huge 65-35 percent margin — almost 2-1. So much for the top spot.

Brown, of course, figures turnout will be much heavier this fall, with a presidential election included, plus other propositions covering emotional issues like the death penalty, the three-strikes-and-you're-out criminal sentencing law and genetically engineered food labeling.

He especially figures his labor union allies will turn out large numbers of voters to beat back "paycheck protection," a Republican-backed plan making it harder for unions to fund campaigns.

But recent history indicates the top slot doesn't help, even with large turnouts and rampant emotion.

In November 2010, for example, Proposition 19 occupied the top spot with its plan to legalize, regulate and tax marijuana. Despite the strong feelings of the millions of Californians who regularly use pot, that one lost by a 54-46 margin in an election that included races for both governor and US senator.

Yes, measures in the top slot can win, as can propositions in other ballot positions. That's especially true when they are obvious no-brainers like the June 2010 Proposition 13, which prohibits adding the cost of seismic retrofitting to the assessed value of both residential and commercial property.

But the state's ever more controversial high speed rail bonds were also listed first in November 2008, when they passed by a 53-47 percent margin as Proposition 1A in the extreme high-turnout election that put Barack Obama into the White House.

All of which indicates the top ballot slot means little by itself, but that money measures might have a slightly better chance of succeeding when they appear on the ballot along with other items that draw large numbers of voters.

Brown banks on this to help his tax measure, but the reality is that neither the top spot nor a possible high turnout guarantee anything to anyone. It all depends on the voters' mood and (sometimes) the merits of the measure.