Hillsborough County residents sent a powerful message in 2018 by voting overwhelmingly to tax themselves to address the region’s top problem: A clogged, chronically failing transportation system. The Florida Supreme Court sounded unimpressed Wednesday with such self-governing, and they took a pinched view of the role citizens can play in a democracy. Hillsborough commissioners should be prepared to place another transportation referendum on the November ballot if the court takes the incredible step of nullifying the decisive outcome from the last election.
The justices heard arguments Wednesday at the core of a legal challenge to the tax: Whether the language of the referendum was so fatally flawed the tax should be overturned. Fifty-seven percent of Hillsborough voters said yes to a one-cent local sales tax increase that would raise more than $280 million annually for transit, bike, pedestrian and road projects. But in separate lawsuits, Hillsborough resident Bob Emerson and Hillsborough County Commissioner Stacy White argued that the tax is unconstitutional because the measure sets aside the proceeds for specific uses, which they claim usurps spending authority the Legislature granted solely to the county commission. Never mind the commission already has agreed with the spending priorities outlined in the referendum.
Hillsborough Circuit Judge Rex Barbas upheld the tax in June but invalidated the spending categories and a provision that gave veto power over spending to an independent oversight board. Barbas properly balanced a ruling on the commission’s authority with his finding that it was “evident” the voters wanted transportation improvements and “further obvious to this court that the electorate made their desires clear.” But opponents argue removing the stricken language dooms the tax entirely, and several justices sounded sympathetic to that argument.
This would be a radical move for a conservative court that prides itself on sticking to the plain meaning of the legal text. While opponents claim the measure conflicts with state law, the very first section of the amendment expressly states the proceeds of the tax “shall be distributed” according to Florida statutes and the Hillsborough county charter. What’s more, the purpose of the surtax was made entirely clear, and the projects envisioned mirror those expressly authorized by the Legislature. Nothing the trial court invalidated changed the nature of the tax or its substantive impact. But this is a court that decides for itself what words mean, regardless of what others think they mean. It is openly hostile to constitutional amendments and could not care less about the intent of the framers of the ballot questions or the voters who approved them.
There is a real likelihood the Supreme Court may invalidate the voters’ decision on the transportation referendum. Hillsborough commissioners need to be prepared to put another referendum to the voters in November. The county cannot afford to remain stuck in neutral while the justices parse words to suit the Federalist Society. Bus service across the region is terrible. There are no fast connections between the major downtowns. Traffic congestion is worsening, and rail and other fixed routes remain fantasies for now.
The only game changer is more local revenue for transportation projects that are the key to the region’s future. Hillsborough voters recognized the challenge and agreed on a solution. If the Florida Supreme Court ignores their wishes, the commissioners and the voters will have to try again.
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