Its in the Constitution!
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  • It's in the Constitution!
The State’s budget crisis reached a new precipice last year when the State Supreme Court ruled in the McCleary decision that the Legislature is failing in its “paramount duty” to fund public education. In the wake of that ruling, a group of lawmakers, education advocates, and taxpayers filed a separate lawsuit seeking to defeat an impediment to the Legislature’s ability to raise the revenues necessary to fund education: the Two-Thirds Rule. This rule requires a two-thirds vote of the legislature to pass any new taxes.

The plaintiffs argued that the Framers considered “vote thresholds” to be matters of constitutional concern. They reasoned—and the trial court ultimately agreed—that these thresholds should not be left to the whim of each legislative or initiative cycle. The State Supreme Court is set to decide the issue later this month, with a hearing scheduled for tomorrow at the Temple of Justice in Olympia.

One phrase in particular is central to the Court’s decision and to the validity of the Two-Thirds Rule: the provision in Article II, Section 22 of the State Constitution that “[n]o bill shall become a law unless . . . a majority” votes in its favor. A plain reading of that provision, written in 1899, clearly indicates that any bill that receives a simple majority vote shall become law. And in fact, that’s exactly what the plaintiffs argued—and again, the trial court agreed.

The Two-Thirds Rule proponents claim, however, that the State Constitution's phrasing creates only a minimum but not a maximum threshold to pass legislation. According to this argument, Section 22 sets a “floor” that cannot be lowered, but it does not set a firm “ceiling.” Therefore, whatever ceiling there presently is can be raised by statute or an initiative (such as the multiple statewide initiatives over the years that have created, and continued, the Two-Thirds Rule).

Obviously, Article II, Section 22, means different things to each party in the current lawsuit before our Supreme Court. But what did it mean to the Framers who actually drafted the provision in 1899? Did they intend “unless a majority” to set only a floor, or did they mean to create one absolute, unchanging threshold?

As the plaintiffs’ attorneys point out in their briefs, the debate on Section 22 supports their plain meaning argument: the Framers considered but rejected amendments that would have increased the vote threshold in Section 22. That alone should end the case. Oddly, the proponents of the Two Thirds Initiative assert that the debate on Section 22 does not foreclose the possibility that the Framers only intended to set a floor.

But there is one other place in the State Constitution where the Framers chose to use this exact same phrase: Article XI. Fortunately, the Article XI debates were robust and focused, and they provide a clear window into the Framers’ thinking. These debates show that the Framers intended the phrase “unless a majority” to mean one absolute threshold—both a floor and a ceiling—for voting requirements.

Getting Back to Basics: Original Intent

Article XI, Section 3, of the Washington Constitution establishes the process to change county lines. The Framers participating in Washington’s constitutional convention debated Article XI, Section 3, on July 23, 1889. They focused their discussion on a provision in the committee’s initial draft, which stated that “[t]here shall be no territory stricken from any county unless a majority of the voters living in such territory shall petition therefor.” At the time, there was an ongoing boundary dispute on the north line between Pierce and King counties, which made the constitutional debate lively to the point of becoming “acrimonious.” One group of Framers led a “determined effort” to change the voting threshold necessary to change any county boundary lines. They wanted the threshold to move from a simple majority to two-thirds or three-fifths.

After the committee submitted its draft to the Convention, which only required a simple majority to change county boundaries, P.C. Sullivan moved to insert “nor shall any new county be created unless two-thirds of the electors voting shall vote for such division.” The motion failed. The Framers’ discussion then focused on just how difficult the process to change boundaries ought to be. A spirited debate ensued, and eight separate motions were introduced to increase the threshold from “unless a majority” to something more restrictive—either “two-thirds” or “three-fifths.” Each effort to raise the bar failed. The final effort to increase the threshold reveals the Framers’ understanding of the phrase:

Motion: Kinnear moved to strike the word “majority” and insert “two-thirds"

Motion: Warner moved an amendment to the motion to change “two-thirds” to “three-fifths.”

Action: Warner’s motion lost 44 to 25. . . .

Action: A vote was then taken on Kinnear’s motion which lost 49 to 23. . . .

Motion: Tibbetts then moved to strike the entire section dealing with territory to be stricken.

Action: Motion lost.

Motion: P.C. Sullivan moved to have a three-fifths vote necessary to create a county.

Action: Motion lost.

This back and forth illustrates that the Framers’ decision to stick with “unless a majority” would preclude any subsequent effort to impose a “two-thirds” or “three-fifths” voting requirement unless the Constitution itself was amended.

Put differently, the Framers explicitly rejected higher thresholds when adopting this phrase, and that is why, 123 years later, county lines in Washington State cannot be changed unless a simple majority votes to do so. Notably, at no point during either debate—Article II or Article XI—did any Framer ever suggest that the phrase created only a floor but not a ceiling.

Although Articles II and XI deal with different subjects of state constitutional law, the language used to communicate their respective voting thresholds is identical in text and must be interpreted identically in meaning. The notion that the Framers would have used the exact same phrase in two separate sections of the Constitution, but intend them to have two completely different—indeed contrary—meanings, would be illogical. The debate on one (Article XI) shows what the Framers meant by the other (Article II).

This Debate Is Over

I-1185, the latest iteration of the Two-Thirds Rule, purports to use the public initiative process to reopen Constitutional Convention debates that ended more than 120 years ago. If the proponents of the Two-Thirds Initiative are correct that the phrase “unless a majority” only sets a floor and not a ceiling, then Kinnear’s failed motion from July 25, 1889, that would have raised the threshold to change county lines from a “majority” to “two-thirds,” could be resurrected through the initiative process.

But such debates are long over. The only way to reopen them is through the constitutional amendment process. The public initiative process cannot be used to change what the Framers already debated and decided.

The Framers debated vote thresholds more than any other matter during the convention. As a result, our state’s Constitution is precise: there are 37 instances where majority rule determines outcomes, 17 references to two-thirds, and 13 references to other some supermajority requirement (either three-fifths or three-quarters). Most of these requirements were enshrined over 120 years ago. This precision proves that the plaintiffs are correct that vote thresholds are matters of constitutional concern.

The phrase “unless a majority” means what it says: a simple majority of legislators can vote to enact ordinary legislation, including tax laws. Because the Two-Thirds Rule is inconsistent with this history and with the Framers’ original intent, it is unconstitutional.

In deference to the Framers’ intent, voters should reject I-1185, and our Supreme Court can be expected to affirm the King County Superior Court’s ruling that the Two-Thirds Rule is unconstitutional.

Nick Manheim, David A. Perez, and Harry Schneider are attorneys in Seattle. On behalf of the League of Women Voters of Washington, they filed a “friend of the court” brief in League of Education Voters v. State, otherwise known as the “Two Thirds Case."