Five times in the past 20 years, Washington state voters have approved the idea of requiring a supermajority of votes in the Legislature to raise taxes, a will of the people strongly evidenced most recently in the passage of three initiatives since 2007. By a vote of 6-3, the Washington State Supreme Court ruled Thursday in the case of League of Education Voters v. State of Washington to strike down Initiative 1053’s two-thirds requirement as unconstitutional.

For some, the news was received as the liberation of the Legislature:

This writer had a different analysis in reaction to the ruling:

In the view of six prevailing justices expressed in their published opinion, overturning I-1053 was necessary because state constitution establishes a simple majority as the sole threshold for passing bills through the Legislature.

“Under a commonsense understanding, any bill receiving a simple majority vote will become law,” the majority wrote, clarifying that they found the simple majority requirement to be a rigid and constitutionally-enshrined ceiling, one that neither lawmakers nor voters can raise through legislative means.

The majority opinion also expressed a somewhat ironic buttressing argument for its decision to strike down voter-approved I-1053. By reversing the direct will of the voters, the Court seeks to preserve the indirect will of voters as expressed through the votes of their elected representatives. According to the prevailing justices, vote nullification (invalidation of votes cast by elected representatives in the Legislature, not individual voters at the ballot box) occurred as a cause of I-1053 and did damage to our system of representative democracy.

Among the plaintiffs in League of Education Voters v. State of Washington were several Democratic state representatives. The Court’s ruling finds that the representatives were harmed by I-1053 when their yes votes in the 2011 session on a specific bill – SHB 2078 – were “nullified” because the bill had simple majority support but did not pass under the supermajority rule.

Of course, votes cast for and against SHB 2078 were not strictly nullified; they exist in the roll call record, though they did not contribute to ultimate passage of the bill. Nullification did not actually occur until Thursday with the Court’s ruling and the alternate legislative history contained in the majority opinion.

Furthermore, the decision fails to recognize that I-1053 and its sister laws have been a direct response to a feeling among voters that their representatives have been routinely nullifying their votes by not representing their will on taxes and spending.

Perhaps my understanding of the Court’s concept of vote nullification lacks a vocabulary of legal jargon and relies too much on a plain language interpretation of the ruling. But plain language is the standard used by the Court in its determination on I-1053; the same standard should apply to its opinion and inserting a radical redefinition of vote nullification in the context of a landmark court decision is the most reckless aspect of this most activist decision by the Court.

Though Flawed, Not the End of Hopes for Legislative Tax Restraint

Gauging popular reactions to the court’s ruling will take some time, but the history of voter support for severely restraining the Legislature’s ability to increase taxes offers clues.

“Today the Supreme Court invalidated this taxpayer protection but did not negate the fact that on five separate occasions the voters have demanded this requirement most recently with statewide passage of I-1185 with a 64% vote and approval in 44 of the state’s 49 legislative districts,” said Washington Policy Center government reform director Jason Mercier in an emailed statement.

Mercier suggests that there is still an option that respects the will of the voters and the opinion of the Supreme Court.

“[W]hat could be more representative of the public will than allowing a vote of the people on a constitutional amendment such as SJR 8205 to help resolve this debate once and for all?” Mercier said. “There is nothing for lawmakers to fear by sending SJR 8205 to the voters but the will of the people.”

Senate Joint Resolution 8205 proposes amending the constitution to enshrine the supermajority rule, and the state Supreme Court did voters and activists an enormous favor by directly addressing the prospect of a constitutional amendment in its majority opinion.

“Should the people and the legislature still wish to require a supermajority vote for tax legislation, they must do so through constitutional amendment, not through legislation,” the opinion of six justices concludes.

Coming as it does on the cusp of the busiest time of the current legislative session, the demolition of the supermajority speed bump changes the rules in the Legislature in advance of upcoming battles. Both legislative bodies will be doing battle on how to balance the state budget while complying with another Supreme Court mandate, its commandment in McCleary v. Washington that state government must adequately fund K-12 education.

More political melee could occur when House Democrats begin passing a wave of legislation including billions in new taxes (including higher gas and motor vehicle taxes), and costly regulations on business such as mandatory paid sick leave.


[featured image credit: Alan Cordova]