Surtax critics ask high court to clarify ballot question

BOSTON — Opponents of a proposal to tax the state’s top earners have asked the Supreme Judicial Court to require election officials to include a “fair, accurate description” of the referendum that will go before voters in November.

The complaint, filed Wednesday by the Massachusetts High Technology Council and representatives of other pro-business groups, argues that backers of the surtax might try to mislead voters by using an “inaccurate” summary of the referendum that says the money will be devoted solely for education and transportation.

The lawsuit names Attorney General Maura Healey, whose office has not released the final wording and proposed summary of the ballot question. Opponents of the measure say they want the high court to decide how the question can be presented to voters.

The lawsuit asks justices to require that any summary of the ballot question for voters include a caveat that the state Legislature “could choose to reduce funding on education and transportation from other sources and replace it with the new surtax revenue because the proposed amendment does not require otherwise.”

Chris Anderson, the council’s president, argues the proposed referendum is the latest effort to create a graduated income tax, which has been rejected by Massachusetts voters several times.

He said the lawsuit is not about whether that would be “good public policy or bad public policy, it is about ensuring voters are not misled by a description of the proposal that is neither fair nor accurate.”

He said proponents of the measure “should not dangle the promise of new public education and transportation spending in front of voters, knowing that the Legislature actually can use the new funding on whatever it wants.”

Secretary of State Bill Galvin, whose office will include a summary of the ballot question in a constitutionally mandated voters guide, was also named in the legal challenge.

Representatives from the Massachusetts Taxpayers Foundation, the Pioneer Institute and the Massachusetts Fiscal Alliance are among those who have signed on to the lawsuit, along with several lawmakers, most of them Republicans.

The “millionaires tax” referendum, which was cleared for the November ballot by the Legislature, will ask Massachusetts voters to amend the state constitution to set a 4% surtax on the portion of an individual’s annual income over $1 million.

Estimates provided by groups supporting the proposed Fair Share Amendment say that could drum up more than $2 billion to improve neglected public schools, expand child care options, and fix potholed roads and crumbling bridges.

But a recent report by Tufts University’s Center for State Policy Analysis suggested revenue generated by the proposed surtax would be much less because some wealthy individuals would leave the state or find a way around the new levy.

The report estimated the state would collect $1.3 billion in 2023 from the roughly 26,000 wealthy households that would be subject to the proposed surtax.

Opponents argued the measure will hurt businesses, drive away the wealthy, and put a drag on the state’s economy as it recovers from the pandemic.

They say the new surcharge would affect smaller employers whose personal finances are tied to their business operations — not just multimillionaires.

But a coalition of labor unions, faith groups and community organizations backing the referendum dismissed the lawsuit, saying the state’s top earners can afford to dig deeper into their pockets to help the state recover from the pandemic.

“Massachusetts families are struggling just to stay ahead in the ongoing COVID pandemic, but instead of proposing real solutions our opponents are playing word games in the courts to confuse voters,” the group Raise Up Massachusetts said in a statement in response to the legal challenge. “It won’t work.”