Our Long Unconstitutional Nightmare May Almost Be Over
Democrats Win the First Battle in a Wonky Lawsuit That Could Break the Conservative Stranglehold on State Politics
For two years in the midst of a deep recession, the citizens of Washington State—and our representatives in Olympia—have been living under an unconstitutional restraint on our legislature's power to collect revenue.
That, at least, is the opinion of King County Superior Court judge Bruce Heller, who on May 30 delivered a perhaps fatal blow to Tim Eyman's Initiative 1053, passed by state voters in 2010 with 64 percent of the vote. A majority of Washingtonians that year may have liked the idea of making it nearly impossible for our legislature to raise taxes (by requiring a two-thirds supermajority of lawmakers in order to do so), but the initiative they approved wasn't legal, said Heller. It's the state's founding document, not the initiative process, that makes the rules for what size majority the legislature needs to do various things. And, Heller pointed out, the state constitution says it's a simple majority—50 percent of lawmakers plus one vote—to raise taxes, not a two-thirds majority that's virtually impossible to achieve in the divided capital.
Eyman's two-thirds supermajority requirement, Heller concluded, "violates the simple majority provision of Article II of the Washington Constitution."
"It's been incredibly frustrating," said Representative Jamie Pedersen (D-43), one of several state lawmakers who filed suit against Eyman's initiative, speaking of life under I-1053. "Our offices are filled every session, for the last five sessions, with people who are going to lose their health care, whose kids are in overcrowded classrooms, people who aren't able to go to college—I mean, literally, fill in the blank for all the services the state does—and we aren't able to do anything about it, because of the two-thirds requirement."
Describing the legislative despair this has produced, Pedersen continued: "The only thing we can do when we have a budget shortfall is cut services. So we've just done that over and over again. It's discouraging, heartbreaking, depressing. I mean, it makes you feel completely powerless because we can't even have a debate about raising taxes."
Pedersen and many others have been saying for years that Eyman has made a sneaky end-run around the state constitution with his two-thirds supermajority shenanigans—first with Initiative 601 (in 1993), which begat Initiative 960 (in 2007). Both of those were suspended by the legislature after two years, but then, each time, Eyman has run another initiative (I-1053 in 2010 and now, because that one will likely be suspended, too, Eyman is gathering signatures to run I-1185 this fall).
Judge Heller certainly agreed with the plaintiffs, who also include Representatives Reuven Carlyle (D-36) and Deb Eddy (D-48), a former state supreme court justice, the League of Education Voters, the Washington Education Association, and many others. In his 21-page opinion, two things leap from the page: (1) Heller feels the underlying legal issue is pretty damn open and shut, and (2) he spends an awful lot of time addressing the "justiciability" question—that is, should the case be heard in the first place? That's probably because foes of the supermajority provision have previously attempted to challenge it via the courts, but each time the state supreme court has punted, claiming either that the issue was not yet ripe, that the plaintiffs lacked standing, or, most recently, that the court did not have the jurisdiction to meddle in disputes over parliamentary procedures. Heller clearly thinks the state high court needs to take another look this time.
Eyman, acting confident that the supremes will side with him, attacked Judge Heller in a May 30 e-mail for "contradicting various High Court rulings." But the truth is, this is the first time a Washington court has ever ruled on the underlying constitutional question: Can the minimum threshold for approving legislation be changed via initiative or only through a constitutional amendment?
This gets wonky, but bear with us.
As Judge Heller's opinion points out, the plain language of our state Constitution is perfectly clear: "No bill shall become a law unless on its final passage the vote be taken by yeas and nays... and a majority of the members elected to each house be recorded thereon as voting in its favor."
There are 16 circumstances in which Washington's Constitution specifies supermajority requirements, but this is not one of them. And there is zero direct precedent to suggest (as Republican attorney general Rob McKenna argued in filings to Judge Heller) that this simple majority is merely a floor upon which legislators (or the people, via initiative) can add additional requirements. True, a number of other states have adopted supermajority requirements for enacting tax-related bills, but all of them have done so via constitutional enactment or amendment, even those whose constitutions contain similar language. Only two other states, California and Alaska, have even attempted to impose supermajority requirements legislatively, and in both cases the courts have rejected the argument that the majority vote requirement as set forth in their respective constitutions merely constituted a floor.
But wait: It gets even more wonky!
If a majority of Washington's justices were to adopt the attorney general's position and reverse Judge Heller on this fundamental question, it would set Washington apart as the only state in the nation to adopt this novel interpretation. Such a decision would also stand apart from the precedent established in Gerberding v. Munroe (1998), where the court rejected similar arguments in striking down voter-approved term limits on state elected officials.
But that doesn't mean the high court justices will necessarily let Judge Heller's ruling stand. Faced with the prospect of tossing out an initiative popularly approved by voters three times over the past 20 years, and presented with a Seattle Times editorial board that's nonsensically commanding them to "give the people what they want" (after stipulating that it doesn't disagree with Judge Heller's interpretation of the constitution), our popularly elected supreme court justices may yet seize upon justiciability to escape this controversy yet again.