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Friday, September 28th, 2012

Frank Blethen’s Seattle Times tells Supreme Court to bring back Tim Eyman’s I-1053

Well, that didn’t take long.

Less than seventy-two hours after the Supreme Court heard oral argument in League of Education Voters v. State of Washington (the legal challenge to Tim Eyman’s Initiative 1053), Frank Blethen’s Seattle Times released an editorial telling the Supreme Court to bring back Tim Eyman’s I-1053, which was struck down in May by King County Superior Court Judge Bruce Heller.

Republican gubernatorial candidate and current Attorney General McKenna – whose office is defending I-1053 on behalf of the state – has asked the Supreme Court to throw out the case and not even decide if I-1053 is constitutional or not. Failing that, he wants the Court to legitimize Eyman’s two-thirds scheme anyway.

In briefs and in oral argument, McKenna and his team have claimed that Article II, Section 22 of the Constitution, which specifies that the threshold for passage of bills is a majority vote, only sets a floor and not a ceiling.

In other words, they’re arguing the threshold cannot be lowered by statute, but it can be raised to something higher. Like two-thirds for bills that raise revenue. Or three-fourths for the same. Or nine-tenths for other types of bills.

Or unanimous consent for all legislation, period.

I examined their argument in depth yesterday and explained (at great length) why it doesn’t make sense. I’m not going to repeat that post word for word here, but I will summarize the main point I was making, which is this: In a democracy, there is no principle more basic than majority rule with minority rights. In ancient Greece, democracy was considered to mean government by the many, as opposed to an autocracy or oligarchy, where power is concentrated in the hands of a few.

Without majority rule, there can be no democracy, because decisions end up getting made by the few instead of by the many.

Majority rule, and majority vote, can only mean greater than fifty percent. No more, no less. Otherwise, the outcome is not in the hands of the many, it’s in the hands of the few. I illustrated this point yesterday with a series of pictograms. When a two-thirds vote is required in our House and our Senate, it means thirty-three representatives and seventeen senators control the outcome, because they can block their colleagues from taking action.

Frank Blethen’s Seattle Times and Rob McKenna’s legal team argue that the definition of majority is flexible. They’re wrong. A supermajority is not a majority, just as a submajority is not a majority. Allowing thirty-three representatives and seventeen senators to block revenue legislation is as democratic as allowing one-third of each house to pass such bills. The scenario I’ve just described is merely the inverse of the same unconstitutional idea.

If majority can mean 66.6%, it can also mean 75%, 90%, or 100%. Or maybe even ninety percent plus Santa Claus, as Justice Chambers joked on Tuesday. That is the totally illogical interpretation of Article II, Section 22 that Rob McKenna and Frank Blethen want the Supreme Court to bless.

Consider the consequences of that interpretation. I could sponsor an initiative requiring unanimous consent of the Legislature to modify any regulation. It would be constitutional, according to Rob McKenna and Frank Blethen. All I would need to do to create endless gridlock in the statehouse would be to get voters to sign off on an initiative instituting a new vote requirement under a certain set of circumstances. Cue dysfunction and turmoil.

The people who wrote our Constitution deliberated and debated where it made sense to give control over the outcome of a vote to the few instead of to the many, as David Perez’ research shows. They concluded that under normal circumstances, the many should prevail, and that is why the words “majority of the members elected to each house” appear in Article II, Section 22.

The McKenna/Eyman/Blethen interpretation rests on a very flimsy, unsupportable argument, as David Goldstein explains in The Stranger:

If the editors had actually bothered to read the briefs in LEV v. State instead of just parroting Rob McKenna’s press releases, they might have understood why Solicitor General Maureen Hart spent most of her time before the court arguing justiciability. It is because the negative phrasing argument, upon which the state’s defense of super-majorities wholly relies, was already rejected by the court in 1998’s Gerberding v. Monroe.

Gerberding challenged the constitutionality of I-573, the term-limits initiative approved by voters in 1992, and overturned by the court in 1998. And in its defense of I-573, the state adopted the same failed argument that it is using today (and that the editors “believe” simply because McKenna told them so): That the negative phrasing of Article II, Section 7 establishes a floor for qualifications, not a ceiling.

SECTION 7 QUALIFICATIONS OF LEGISLATORS. No person shall be eligible to the legislature who shall not be a citizen of the United States and a qualified voter in the district for which he is chosen.

In Gerberding, both the state and intervenors argued that the negative phrasing of the clause implied a statutory power to add additional qualifications on top of those specified in the Constitution. But citing multiple precedents, including a U.S. Supreme Court decision, the majority rejected this argument, writing that “the Court recognized the qualifications clause provides an exclusive list of qualifications, notwithstanding its negative phrasing.”

Alaska’s Supreme Court reached the same conclusion in the 2007 case Alaskans for Efficient Government v. State of Alaska, which I have repeatedly cited over the years, and discussed extensively in 2010. That case regarded a measure that was similar to I-960, I-1053, and I-1185. Alaska’s Department of Law advised the Lieutenant Governor of Alaska that the measure was unconstitutional, so he refused to certify that it was in good form. (In Alaska, initiatives can’t go to the signature gathering stage until they have undergone a preliminary review for form).

The sponsor of that measure, Karen Bretz, subsequently asked the courts to overturn the Lieutenant Governor’s determination. The Alaska Supreme Court heard the case on appeal and sided with the state, writing:

AFEG insists that the negative phrasing of Section 14’s majority-vote clause — “[n]o bill may become law without an affirmative vote of a majority” — should be read as signaling the framers’ intent to set a floor, not a ceiling: to require at least a majority vote while allowing laws imposing stricter requirements. If the framers had intended to require no more than a majority vote, AFEG contends, they would have drafted the clause to read: “Any bill may be enacted by an affirmative vote of the majority of the membership of each house.”

But as the state correctly observes, other courts interpreting constitutional language have wisely refrained from attributing any automatic significance to the distinction between negative and positive phrasing. Here, for example, had the framers said “any bill” rather than “no bill,” AFEG’s logic would just as readily compel the anomalous conclusion that section 14 was meant to set a ceiling but not a floor — that a majority vote would be the maximum needed to enact any bill, but the legislature would remain free to specify a sub-majority vote as sufficient to enact laws dealing with specified subjects, as it saw fit.

Not coincidentally, in the footnote to the first sentence of the second paragraph, the Alaska Supreme Court cites Gerberding. And that’s because Gerberding is part of the established case law. It was decided by our Supreme Court, not Alaska’s, but our justices are peers of Alaska’s justices, and vice versa. It would be appropriate and fitting if our Court cited AFEG in their forthcoming decision.

Frank Blethen, on the other hand, wants the Court to ignore Gerberding and AFEG and make a ruling based on political considerations:

On no matter of public policy, except perhaps the income tax, have the voters of Washington been any clearer. In a few weeks, they will very likely pass Initiative 1185, resetting the two-thirds bar for another two years.

The success of that measure should be noted by the court.

No. It would be entirely inappropriate for the Court to take any notice of how well Initiative 1185 does in November. The Supreme Court is a court of law, not a court of public opinion. When a justice is elected or reelected, he or she is required to swear (or affirm) the following oath of office:

I do solemnly swear (or affirm, as the case may be), that I will support the Constitution of the United States and the Constitution of the State of Washington, and that I will faithfully and impartially discharge the duties of the office of judge of the supreme court of the State of Washington to the best of my ability.

Were Frank Blethen and his editorial writers paying attention in civic class? The role of the Attorney General’s office is to defend voter-approved initiatives. The role of the Supreme Court is to defend the Constitution.

If the Court finds that an initiative approved by the people or a bill signed into law by the governor violates the Constitution, it is the Court’s duty to strike it down. It is not the Court’s duty to decide whether a statute is good public policy or not. I-1185’s existence is therefore only relevant to LEV v. State in that it is a reminder that a justiciable controversy exists.

Blethen & Co. are also wrong in asserting that “On no matter of public policy… have the voters of Washington been any clearer.”

As I documented last week, on this matter, the electoral history is mixed. Voters narrowly approved I-601 in 1993 while defeating I-602 (a similar, more extreme measure); in 2007, the people narrowly approved I-960 while also approving HJR 4204, which abolished supermajority vote requirements for school levies.

Only I-1053, in 2010, passed by a large margin. And that was in part because no resources were raised to fight the measure until very late, and the poor economy made voters more receptive to the idea of messing with our plan of government.

And by the way, the Times itself has been inconsistent on this matter.

In 1993, Blethen’s editorial page urged voters to reject both I-601 and I-602. In 2007, Blethen endorsed ratification of HJR 4204, then turned around a week later and threw his paper’s support to Tim Eyman’s I-960. Since then, the Times has enthusiastically backed I-1053 and now I-1185, all the while bemoaning the Legislature’s inability to find more money for our colleges and universities.

At The Stranger, David Goldstein routinely takes offense at the nonsense the Times prints on a weekly basis, and he frequently strikes back with a profanity-laced rebuttal… like he did today.

I suppose it’s a good thing that somebody still gets upset when the Times publishes a dumb editorial. I’m so accustomed to reading incoherent blather nowadays that I just don’t get that reaction. They could publish an editorial tomorrow denouncing I-1185, and I wouldn’t be very surprised. I’d just attribute it to Frank Blethen’s Jekyll and Hyde personality. I never know when I’m turning to the editorial page whether I’ll be seeing the effects of Jekyll’s influence… or Hyde’s (well, unless I’ve already seen that day’s editorials online).

To be frank (pun intended), I’ve become more concerned with the quality of the Times’ reporting. I don’t want to see that go any further downhill. But I believe it’s still worth occasionally taking the trouble to show just how discombobulated the Times editorial page has become, for the benefit of readers who aren’t in on the joke yet. And that’s why I wrote this post.

If the above has you thirsting for more examinations of cognitive dissonance, you might want to check out these posts from the NPI Advocate’s archive:

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