NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Thursday, February 28th, 2013

UNCONSTITUTIONAL! State Supreme Court strikes down Tim Eyman’s two-thirds scheme!


In a 6-3 decision released only minutes ago, the Washington State Supreme Court finally rendered a momentous verdict in League of Education Voters et al. v. State of Washington, et. al, finding the two-thirds requirement at the heart of Tim Eyman’s I-601 clones – also present in I-601 itself – to be unconstitutional. Yes, you read that correctly… unconstitutional!

Here’s a key excerpt from the majority opinion:

Ultimately, Article II, Section 22 requires that bills receive a majority vote before they can become a law. Article II, Section 22 is exhaustive under an ordinary reading of the provision. The supermajority requirement unconstitutionally amends the constitution by imposing a two-thirds vote requirement for tax legislation. More importantly, the supermajority requirement substantially alters our system of government, thus enabling a tyranny of the minority. The framers were aware of the extraordinary nature of a supermajority requirement as evidenced by their decision to use it only under special circumstances. The passage of ordinary legislation is not one of those circumstances.

If the people and the legislature wish to adopt such a requirement, they must do so through constitutional amendment. We also note that our holding is supported by other jurisdictions that have addressed this issue. Accordingly, we affirm the trial court’s decision.

Eyman’s undemocratic two-thirds requirement is no longer law. It’s unenforceable. Majority rule has been restored to our statehouse; the power to make important fiscal decisions is once again in the hands of the many, rather than a few. This is a great, great, great day for the State of Washington.

Our Supreme Court finally stepped up to the plate and did what needed to be done. What had to be done. The majority of the justices who heard this case  – Susan Owens, Barbara Madsen, Charlie Wiggins, Steven González, Tom Chambers, and Mary Fairhurst – fulfilled their oaths of office and defended our Constitution against an attack directed at one of its most important provisions… the principle that our Legislature must operate democratically to truly function as a representative body.

I was particularly pleased to see that the majority cited the case Alaskans for Efficient Government v. State of Alaska in their ruling.

I covered this case in depth two and a half years ago in a post entitled Initiative 1053 wouldn’t fly in Sarah Palin’s home state: What we can learn from Alaska. In AFEG v. State, the Alaska Supreme Court held that an initiative similar to I-960/I-1053/I-1185 could not move forward because it violated Alaska’a equivalent of our Article II, Section 22 provision. The Court reasoned:

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.

Our Supreme Court concurred with Alaska’s Supreme Court in its decision this morning, citing the case and then noting:

The [Alaska Supreme] Court noted that the negative phrasing of a constitutional provision does not automatically warrant distinguishing it from positively phrased provisions. The court also noted that every other state, except for Washington, that has passed a supermajority vote requirement has done so through constitutional amendment, thus indicating it is a subject properly addressed by constitutional amendment, not legislation.

We have argued for years that the meaning of Article II, Section 22 was abundantly plain. “Majority vote” means just one thing: a simple majority, or greater than fifty percent. No more, no less. No other threshold makes sense in a legislative body that claims to be truly representative.  It’s very satisfying to hear the Supreme Court echoing those exact same arguments now.

The majority also cited a passage from the Federalist Papers (Federalist No. 22; Alexander Hamilton) that we and State Representative Reuven Carlyle, a champion for majority rule who was also a plaintiff in this case) have often referred to:

If a pertinacious minority can controul the opinion of a majority respecting the best mode of conducting it; the majority in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will over-rule that of the greater.

James Madison expressed similar sentiments in Federalist No. 58, which the majority also cited (but did not quote from).

Our only real disappointment with the majority opinion is that the justices did not set aside I-1053 in its entirety. Judge Bruce Heller concluded that the ridiculous mandatory referendum requirement in I-1053 was unconstitutional as well, and he struck it down. But the Supreme Court overturned that part of his decision, finding that there was no justiciable controversy:

In contrast, LEV’ s challenge to the referendum requirement is not justiciable. Unlike the supermajority requirement, the referendum requirement has not harmed any of the respondents. The legislator respondents do not claim it has nullified their votes, nor do any of the other respondents claim harm from the referendum requirement. Without identifying a legal interest at issue, let alone an injury to that interest, LEV cannot establish a justiciable controversy.


We also note that the referendum requirement does not constitute a matter of major public importance warranting review under these circumstances. For the public importance exception to apply, the dispute must be ripe, and, as discussed above, the referendum requirement has never been triggered or otherwise affected any legal interests. Accordingly, the constitutionality of the referendum requirement is not properly before this court.

We’ll have more to say in response to this aspect of the decision later. It’s disappointing, because we think Judge Heller’s reasoning was sound:

The court concludes that the mandatory referendum issue should also be heard. even though RCW 43.135.034(2)(a) has never been invoked, and there is no indication it has resulted in harm to the plaintiffs. First, in ATU, the court summarily determined that plaintiffs challenging a similar referendum requirement had standing with justiciable claims. Second, the requirement raises an issue of public importance and can be heard on that basis alone.

Justices Charles Johnson, Debra Stephens, and Jim Johnson dissented from the majority opinion.

We were expecting a dissent from Jim Johnson (the coauthor of another unconstitutional Tim Eyman initiative, I-747), but we had hoped the other eight justices would stick together. It’s unfortunate that Justices Stephens and Charles Johnson wanted to duck the issue for a fourth time. Their dissenting opinion isn’t very compelling. At least their view did not turn out to be the prevailing one.

As I noted yesterday, there is a lot of case law already surrounding the supermajority requirement. This challenge was properly brought, and for the court to have dismissed it on a technicality would have been a travesty.

We extend our thanks to the majority for their thoughtful, well-reasoned decision, and to King County Superior Court Judge Bruce Heller, for laying the groundwork last May when the case was at the Superior Court level.

And we are incredibly, incredibly thankful to the courageous plaintiffs who brought this case: The League of Education Voters; the Washington Education Association; Senator David Frockt; former Chief Justice Robert Utter; Representatives Reuven Carlyle, Jamie Pedersen, Sam Hunt, Cindy Ryu, Laurie Jinkins, Jim Moeller, Timm Ormsby, Eric Pettigrew, Chris Reykdahl, and Mike Sells; former Representative Deb Eddy; Andy and Rebecca Bunn, Kim Bielski. Amy McKenney, Kurt Miller, Ryan Painter, John Chesborough, and and Kristin Skanderup.

They were ably represented by Paul Lawrence, Matthew Segal, Sarah Johnson, and Gregory Wong of Pacifica Law Group, and we thank them as well. Props also to Governor Chris Gregoire for retaining her own counsel in the case, and to David Perez of Perkins Coie, for submitting one of the best-researched amicus curaie briefs we’ve ever seen on behalf of the League of Women Voters.

As the day goes on, we’ll be posting more analysis. But for now, we celebrate this landmark, pro-democracy decision, and we invite you to join us!

Adjacent posts

  • Donate now to support The Cascadia Advocate

    Thank you for reading The Cascadia Advocate, the Northwest Progressive Institute’s journal of world, national, and local politics.

    Founded in March of 2004, The Cascadia Advocate has been helping people throughout the Pacific Northwest and beyond make sense of current events with rigorous analysis and thought-provoking commentary for more than fifteen years. The Cascadia Advocate is funded by readers like you: we have never accepted advertising or placements of paid content.

    And we’d like it to stay that way.

    Help us keep The Cascadia Advocate editorially independent and freely available by becoming a member of the Northwest Progressive Institute today. Or make a donation to sustain our essential research and advocacy journalism.

    Your contribution will allow us to continue bringing you features like Last Week In Congress, live coverage of events like Netroots Nation or the Democratic National Convention, and reviews of books and documentary films.

    Become an NPI member Make a one-time donation

One Ping

  1. […] from who care about kids celebrate Thursday’s Washington Supreme Court ruling striking down Tim Eyman’s two-thirds initiative. Putting political ideology aside, parents, […]