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Tax swap, vouchers off Nov. ballot

By Alex Leary and Ron Matus, Times Staff Writers
In print: Thursday, September 4, 2008

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TALLAHASSEE — The Florida Supreme Court has stripped a tax "swap" from the Nov. 4 ballot as well as two equally contentious school voucher measures, a stunning rebuke to former Gov. Jeb Bush and a powerful panel of political appointees.

Wednesday's unanimous decisions, coming two days before the state's deadline to certify the ballot, mean Floridians won't vote any time soon on new property tax cuts or have a chance to expand the reach of private schools.

"This is huge victory for public schools," said Beverly Slough, president of the Florida School Boards Association and a plaintiff in the cases.

The rulings came only a few hours after justices peppered state lawyers with questions, strongly suggesting they felt the proposals were misleading or outside the bounds of the Taxation and Budget Reform Commission, which proposed the amendments.

The court did not release its written opinions on Wednesday.

The so-called tax swap, known as Amendment 5, called for eliminating most school property taxes — for a cut of at least 25 percent statewide — in exchange for a higher sales tax and other revenue sources identified by the Legislature.

It would have been the most significant tax reform placed before voters in decades and would have forced lawmakers to take a hard look at special interest tax exemptions.

But Amendment 5's fatal flaw was the ballot language. It did not explain that school funding could be cut just a year after the amendment went into effect to help make up for the lost revenue.

"As I'm going to vote, I read this and I say, 'Well, why shouldn't I do this?' " Justice Harry Lee Anstead said during oral arguments Wednesday morning. "Then I find out the fine print says they only have to do that for one year. … Why isn't that misleading?"

Mark Herron, one of the lawyers defending the measure, called the ballot title a "caption" and said voters would read it along with the 75-word summary to grasp the idea. "We're not hiding the ball here," he said.

A vocal coalition opposed the plan, from AARP to the Florida School Boards Association, which argued it would hurt schools and all Floridians by increasing the sales tax. Moreover, critics feared legislators would make up for the lost revenue by taxing services, such as dry cleaning and accountants.

"After many years of trying to change the tax system in Florida, to provide a fairer system, this shows it's a huge mountain to climb," said John McKay, a Bradenton real estate broker and former state Senate president who championed the plan as a member of the tax commission.

With the Supreme Court denying a rehearing, pressure will now build on lawmakers and Gov. Charlie Crist to come up with a new plan.

In shooting down Amendments 7 and 9, justices handed voucher opponents their latest victory in a nine-year battle against former Gov. Jeb Bush. Both ballot measures sought to rewrite language in the Florida Constitution that the courts used to strike down Opportunity Scholarships, the first and most controversial of three voucher programs created during Bush's tenure in office.

Amendment 7 would have removed the "no aid" language that bars state money from going to religious institutions. Amendment 9 would have mitigated language mandating a "uniform" system of free public schools. It also would have required school districts to spend at least 65 percent of their money in classrooms.

Policy experts widely panned the "65 percent solution" as a meaningless gimmick. Critics said its inclusion in Amendment 9 was a transparent attempt to make vouchers more palatable to voters.

The Supreme Court justices felt that vouchers were outside the Taxation and Budget Reform Commission's purview. Justice Barbara Pariente said it seems about "as far afield as you can get." The commission meets every 20 years and has the power to bypass the Legislature and citizen initiative process to put constitutional amendments on the ballot.

Had they passed, Amendments 7 and 9 "would have totally changed education in the state for the worse," said Andy Ford, president of the Florida Education Association, the state's teacher union, and lead plaintiff in the case. They "would have set up a dual, private-public school system."

Supporters said they wanted to insulate Florida's two remaining voucher programs — one for disabled children, one for poor children— from future legal challenges. Those programs serve about 38,000 students.

Over and over again across the country, voters have shot down voucher amendments "because the other side throws up so much smoke and mirrors in addition to money to defeat it," said Andrew Campanella, spokesman for the Alliance for School Choice, the nation's largest pro-voucher organization.

But Florida's current vouchers programs should be fine, despite what happened to the amendments, he said. They have "survived and thrived, and we're hopeful and confident they will continue to do so."

Bush called the decision "heartbreaking." Both vouchers and charter schools "will remain in limbo," he wrote in a statement, "under the real threat of litigation from individuals who want to centralize all education decisions within government bureaucracies."

The former governor played a behind-the-scenes role in getting both amendments on the ballot, getting loyalists on the commission to push them forward.

The court ruling is "a fundamental rebuke to (Bush's) efforts to dismantle public schools," said Damien Filer, political director for Progress Florida, a group that opposed Amendments 7 and 9. Filer doesn't expect Bush or other voucher supporters to fade away. "They're smart, well-funded and relentless," he said.