Last year several House Democrats joined the Washington Education Association (WEA) and the League of Education Voters to file a lawsuit to overturn the four-time voter approved 2/3 vote requirement for tax increases.

Today Governor Gregoire filed a legal brief urging the Court to rule on this issue. From her brief (in-part)

“Governor Christine Gregoire asks this Court to decide the constitutionality of the supermajority requirement of Initiative 1053. The Governor’s aim is not to advocate one view of constitutional interpretation or another–the plaintiffs and the Attorney General have sharpened the issues and legal arguments and present this Court with a sound basis to decide this matter. Instead, the Governor presents her view that this is the right time, the right court and the right procedural posture for the Court to decide this important constitutional issue. The Governor believes the opinion of the Court will be beneficial to the public and to the proper execution of her duties, which include a constitutional and statutory role in the proposal and enactment of laws that raise state revenue. These duties are impacted by the ongoing uncertainty about the constitutionality of the two-thirds vote requirement.”

According to the Court, next Wednesday (January 18) the “Court will make a ruling off the record regarding the page limits and briefing schedule for the summary judgment.”

Rather than leave the decision in the Court’s hands, the Governor instead should encourage lawmakers to end this debate once and for all by providing Washingtonians the opportunity to vote on a constitutional amendment reaffirming the policy during the 2012 general election. This would provide the public and businesses with predictability about whether this tax protection will exist from year to year and clarify whether or not the repeated approval of the voters for this policy was a fluke or actually reflects their consistent and ongoing desire for lawmakers to build a strong public consensus on the need for any proposed tax increase.

Here is the track record for the 2/3 vote requirement or voter approval for taxes policy at the ballot:

  • 2010: I-1053 – Required 2/3 vote or voter approval for tax increases (64% yes)
  • 2007: I-960 – Required 2/3 vote or voter approval for tax increases (51% yes)
  • 1999: I-695 – Required voter approval of all tax increases (56% yes)
  • 1998: R-49 – Reaffirmed provisions of 1993 I-601 (57% yes)
  • 1993: I-601 – Required 2/3 vote for tax increases (51% yes)

Ironically, using only a simple majority vote, the legislature has suspended the two-thirds vote threshold three times. This occurred most recently during the 2010 Legislative Session, when lawmakers passed SB 6130. The two previous times the legislature suspended the two-thirds requirement were in 2002 (SB 6819) and 2005 (SB 6078).

Despite numerous legislative amendments to the section of law (Revised Code of Washington 43.135) containing the two-thirds vote requirement, the legislature has never fully repealed the voter-passed mandate that tax increases require a two-thirds vote.

In fact, in 2006 the legislature shortened its own 2005 suspension and voted explicitly to reinstate the two-thirds vote requirement so its suspension ended a year sooner than it would have otherwise (SB 6896). This bill was supported only by Democrats including Senate Majority Leader Lisa Brown (the bill primarily dealt with increasing the spending limit but an amendment was adopted reinstating the 2/3 vote requirement a year early).

Despite her support for reinstating the 2/3 vote requirement a year early in 2006, here is a recent TVW interview where Senator Brown discusses why she believes the Court should overturn the voter-approved and legislative reaffirmed 2/3 vote requirement for tax increases:

(Click here for video)

Here is what the Attorney General’s Office said (in-part) back in 2008 about the constitutionality of the 2/3 vote requirement when it was last challenged in court (page 37 – legal citations omitted):

“Petitioner attempts to meet her ‘responsibility of proving that [RCW 43.135.035(1)] is unconstitutional beyond a reasonable doubt’ on the basis of a constitutional provision that, by its own terms, does not prohibit the statute that she challenges. Article 2, Section 22 provides, ‘[n]o bill shall become a law unless . . . a majority of the members elected to each house be recorded thereon as voting in its favor.’ Article 2, Section 22 establishes a constitutional minimum number of votes for a bill to become law. It only describes the circumstances under which a bill does not pass. In other words, Article 2, Section 22 does not prohibit statutes by which the legislature (or the people) express their legislative policy judgment that certain types of bills warrant greater than simple majority consensus for passage. RCW 43.135.035(1) expresses such a legislative policy judgment—that a two-thirds majority vote of each house should be required for passage of bills raising taxes. The statute hardly conflicts with the constitutional floor set by Article 2, Section 22, as any bill receiving its supermajority support has met the requirement of Article 2, Section 22 . . .

Both the framers of the constitution and subsequent legislatures and voters have recognized that certain specified actions should command the support of more than a simple majority. Petitioners, to the contrary, urge that the same constitutional convention that embraced supermajorities for some purposes intended to prohibit statutes requiring supermajorities for any other purposes. The Constitution contains no language supporting this notion, however. The framers may not reasonably be presumed to have implied the prohibition of a political mechanism that they themselves adopted through language that does not say so. Given the plenary legislative authority of the people and the legislature, and the absence of a clear constitutional prohibition, the Court should not conclude otherwise.”


[Reprinted from the Washington Policy Center blog; photo credit: kristiapaz]