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State's high court rules unconstitutional two-thirds-vote requirement

 

Sen. Pam Roach (R-Auburn) urged voters to “look out for (their) pocketbooks” after the state Supreme Court declared a two-thirds-vote to raise taxes unconstitutional in a 6-3 ruling released Feb. 28. 

The court's determination was made based on a lawsuit filed by the League of Education Voters along with House Democrat members and other stakeholders in July 2011 challenging the constitutionality of Initiative 1035 passed in 2010.

Some critics of that decision deemed it appalling that the court chose to side with constitutional technicalities rather than the vote of the people. The ruling, prepared by Justice Susan Owens, states that the supermajority requirement is in conflict with Article II, Section 22 of the state’s constitution, which essentially outlines the prerequisite for simple-majority rule. 

“The State’s proposed reading of Article II, Section 22 would fundamentally alter our system of government, and such alteration is possible only through constitutional amendment,” she wrote. “Washington’s government was founded as a representative democracy based on simple majority rule.”

Justices Charles Johnson and James Johnson wrote dissenting opinions, suggesting that the courts shouldn’t be playing politics. 

“In its eagerness to embroil itself in the political arena, the majority abandons any semblance of judicial restraint to declare the process of legislative enactment constitutionally infirm,” wrote Justice Charles Johnson. 

Republicans expressed disappointment at the ruling Thursday and predicted tax increases are inevitable, especially in a Democrat-controlled House. 

“We have the opening of the flood gates that will allow us to be back to where we were and having taxes increased,” said Roach. 

The Auburn senator has sponsored a resolution (SJR 8205) that, if passed by the Legislature and approved by voters on the next ballot, would codify a two-thirds requirement to raise taxes in the state’s constitution. SJR 8205 received a public hearing in the Senate Ways and Means committee Feb. 26 and was passed out of committee two days later on a 13-10 vote. Roach is joined by other Majority Coalition Caucus members on this proposal. 

While the resolution has passed out of committee and may win Senate approval due to coalition caucus-control (23 Republicans and two Democrats) House leadership members Rep. Pat Sullivan (D-Covington) and Rep. Ross Hunter (D-Bellevue) have said it is unlikely that SJR 8205 would receive a hearing in the House. 

Both legislators addressed concerns during a press conference Feb. 28 that tax increases by a simple majority vote, which is required now under state law, does not encourage bipartisan compromise when it comes to tax issues. According to Hunter, the Legislature has passed bipartisan budget agreements the past two years, which included both revenue increases and expense reductions. Finding compromise in Washington is not a concern, he contended. 

“This isn’t D.C. I mean, we talk to each other,” Hunter said.

Amber Carter of the Association of Washington Business stated, however, that the court ruling released Feb. 28 tosses bipartisanship to the wayside and extinguishes any hope that voters might have certainty in the fiscal responsibility of their legislators. 

The court's decision and the push by select Democrats to rebuke the initiative caused some to question if representative democracy was negated.

“Why in the world would a Legislature that purports to represent its citizens continue to force those citizens to go out year after year after year to collect signatures, put an issue on a ballot and have the citizens vote on it, only to then have the Legislature slowly dismantle that mandate?” asked Sen. Don Benton (R-Vancouver). 

In response, Gov. Jay Inslee said, “The supermajority requirement gave a legislative minority the power to squelch ideas even when those ideas had majority support. That is inconsistent with our fundamental form of representative democracy.”

In anticipation that the court would throw out the supermajority requirement, House Minority Leader Rep. Richard DeBolt (R-Chehalis) said Republican representatives attempted to pass a rule change that would have required a two-thirds vote to advance tax and fee related bills to third reading. Following the third reading of a bill, it can advance to final consideration, at which point the legislation moves to the opposite chamber or, if the bill has already been heard in both chambers, travels back to its house of origin to be either passed to the governor or rejected. The amendment to rules failed 52-41 earlier this session. 

“It serves their (Democrat’s) special interests more to raise taxes than it does to serve the concerns of the people of Washington state,” said DeBolt. 

Several cited the importance of this ruling in the context of education funding and the looming 2018 mandate set out in the Washington Supreme Court case McCleary vs. State of Washington.

The court ruling “is a victory for my son … and the kids of Washington who are fighting to succeed in this state and in this world and we have been unable to provide for them the kind of education they deserve,” said Rep. Laurie Jinkins (D-Tacoma). 

Jinkins argued that because the supermajority would have made it more difficult for lawmakers to raise taxes, the Legislature would not be able to sufficiently address its paramount duty to adequately fund K-12 education. 

But some said that using the excuse of children is just a ploy to raise taxes to satisfy special interests. 

“They sell the children all the time politically,” said DeBolt. “You’re destroying our kids’ future because you’re going to price us out of the market and businesses are going to leave our state to go to other places.”

It has long been the stance of Washington Republicans that in order to enhance the future of Washington children, lawmakers need to step out of the way of small business in hopes that more job opportunities will become available and more parents will be able to go back to work to support their children academically and otherwise. 

“It’s not just the people we’re looking at but remember,” said Roach, “the biggest issue we’re looking at in the state of Washington today is the economy; the creation of jobs and whether or not we will be able to return to prosperity in the state of Washington.”

The drive to make it more difficult for lawmakers to raise taxes isn’t new to the majority of Washingtonians. Since 1993, four initiatives have been passed that required a two-thirds legislative majority vote to raise taxes:

Year  Measure Approval Rate
1993  I-601 51 percent
2007  I-960 51 percent
2010  I-1035 64 percent
2012  I-1185 64 percent

Proponents of the supermajority requirement often reference Referendum 49 from 1998 as a fifth measure. However, the referendum was largely related to a reduction in the motor vehicle excise and other transportation funding measures. Its only real connection to the two-thirds discussion is that it would have modified certain provisions made in I-601 to prevent a reduction in the state expenditure limit when money-transfers were made from the state’s general fund and to financially assist local governments in implementing transportation projects, under certain conditions. The referendum was known as the Transportation Funding Act. 
 
The most recent initiative passed last November, I-1185, was approved by all 39 counties and 44 of 49 legislative districts. Of the 3.9 million registered voters in the state of Washington, 1.9 million favored the initiative. 

The measures prior to the 2010 initiative were periodically suspended and modified during the 20-year tax-initiative battle. The last three attempts were spearheaded by initiative instigator and Mukilteo resident Tim Eyman. 

In response to those who predict that voters would now see tax hikes in light of the Supreme Court ruling, supporters of the court’s decision claim that throwing out a supermajority won’t change anything. 

“Voters want us to be thoughtful,” said Hunter. “And we’re going to be thoughtful.”
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