This morning, at a press conference at Pacifica Law Group’s offices in downtown Seattle, several friends of the Northwest Progressive Institute announced the filing of a legal challenge to block Tim Eyman’s incredibly destructive I‑1366 from the November ballot because it exceeds the scope of the people’s initiative power as set forth in Washington’s Constitution.
We released a statement praising this lawsuit through NPI’s Permanent Defense earlier today, but this is really important news, worthy of further analysis and commentary, so I’m going to talk about it at greater length here.
I‑1366 — which was certified yesterday for the November ballot by Secretary of State Kim Wyman — would slash state sales tax revenue by $8 billion over the next six years unless the Legislature agreed to pass a constitutional amendment sabotaging our cherished tradition of majority rule. Eyman wants to permanently put the fate of revenue decisions in the hands of a submajority of lawmakers (seventeen of forty-nine senators or thirty-three of ninety-eight representatives).
This would have the effect of locking in our state’s regressive tax system for all time, preventing the Legislature from acting to fix our broken tax code. It would subvert the Constitution’s Article II, Section 22, dating back to statehood, which declares that bills shall pass by majority vote (in other words, greater than fifty percent).
King County Elections Director Sherril Huff, Thurston County Auditor Mary Hall, State Senator David Frockt, State Representative Reuven Carlyle, Bellevue College student Paul Bell, Seattle parent Eden Mack, retired nurse Angela Bartels, Solid Ground fellow Tony Lee, and ElderCare Alliance Chair Jerry Reilly — the plaintiffs in the case — agree with us that Eyman’s I‑1366 is not a proper initiative.
Eyman’s own false advertising supports this conclusion. The heading of I‑1366, which you can see above the text, contains the words “2/3rds Constitutional Amendment”. Eyman has also referred to I‑1366 as the “2/3rds Constitutional Amendment initiative”. But there is no such thing, and Eyman knows it.
Article XXIII of the Washington State Constitution explains in pretty plain language how amendments are made. They must originate in the Legislature, and they must receive a two-thirds vote of each house to pass. Then, they are placed before the people for ratification, which takes a majority vote.
This is the only process we have for amending the Constitution. There is no other.
In neighboring Oregon, the Constitution may be amended by ballot initiative, but not here. The people who wrote Washington’s Constitution and who brought direct democracy to our state wisely realized that Washington is first and foremost a republic. They also knew a healthy democracy requires a balance between majority rule and minority rights. That is why the responsibility of proposing amendments to Washington’s Constitution rests solely with the Legislature.
As Tim Eyman is not one of our elected representatives, he can’t propose a constitutional amendment. And since he is not influential in the Legislature except among the most extreme members of the House and Senate Republican caucuses, he does not have the votes to force through an amendment sabotaging the Constitution’s majority vote requirement for passage of bills.
Eyman certainly has a knack for convincing ultra-wealthy right-wing donors to give him money for malicious schemes to destroy our common wealth and wreck our government, which belong to us, the people of Washington. But his long history of careless, hyberbolic rhetoric and repeated use of bad politics to pursue his nefarious ends have made him very unpopular. As he has discovered, two-thirds is a very high bar. He doesn’t have the votes to get the Supreme Court’s League of Education Voters decision (which upheld majority rule in Article II, Section 22) overturned.
So he has turned to blackmail. Coercion. Extortion. All of those words describe the twisted, sinister purpose of I‑1366.
Eyman’s hostages are the youth of Washington State, whose education is imperiled by his threat to eliminate $8 billion in sales tax revenue through 2021 if the House and Senate don’t do as he demands by mid-April of next year.
It is vital that every Washingtonian understand that the sales tax provides nearly half of the revenue for our general fund, and over half of every dollar in the general fund goes to either K‑12 schools or to colleges and universities.
The loss of $8 billion in sales tax revenue would devastate funding for education in Washington, in violation of Article IX of our Constitution, which says that the education of our youth is our paramount duty as a people.
When he has been asked in interviews about the destructive impact of the sales tax cut his initiative prescribes (which we’ll call Scenario 1), Eyman has consistently pivoted back to talking about what he considers to be the merits of requiring a two-thirds vote to raise revenue, because he clearly doesn’t want to dwell on the subject of the dreadful, awful impact of a sudden and drastic cut in the sales tax. Scenario 1 is easily avoided, Eyman says, if the Legislature opts for Scenario 2: Capitulation to his demand for a constitutional amendment.
But proposing constitutional amendments is the Legislature’s prerogative. It is the House and Senate’s constitutional role to originate any changes to our state’s highest law. With I‑1366, Eyman is attempting to do an end run around the Washington State Constitution by inducing the Legislature to introduce and vote on the particular amendment he wants under duress.
This is an outrageous abuse of the initiative power, which was conceived over one hundred years ago by Progressives to allow the people of Washington to make, alter, or repeal laws… but not to change our plan of government.
The aforementioned plaintiffs contend that because Eyman’s I‑1366 exceeds the scope of what an initiative may constitutionally be, it should not go before the people of Washington for a vote. The plaintiffs are seeking an injunction to enjoin Secretary of State Kim Wyman from placing I‑1366 on the November ballot.
As the complaint filed by Pacifica Law Group’s Paul Lawrence, Kymberly Evanson, and Sarah Washburn further explains (PDF):
1–1366 was not proposed in either house of the legislature, nor approved by two-thirds of both houses.
Rather, 1–1366 was proposed by its sponsors, and impermissibly attempts to bypass the process set forth in Article XXIII and amend the Constitution via the legislative powers in Article II.
1–1366 utilizes the threat of a [significant] reduction in sales tax to force the State Legislature to invoke the constitutional amendment process, an objective that cannot be achieved through the initiative power. The threatened sales tax reduction would eliminate approximately $1.4 billion in Washington State sales tax revenues per year [beginning in 2017, according to OFM].
The people acting through the initiative have no power directly or by force of threat to invoke the constitutional amendment process.
The suit, filed in King County Superior Court today, also names Tim Eyman, Mike Fagan, and Jack Fagan (the sponsors of I‑1366) as defendants, in addition to Secretary of State Kim Wyman. Wyman will assuredly be represented by Attorney General Bob Ferguson (it’s his job to defend the state when lawsuits are filed). Eyman and the Fagans will be on their own. Though considering the deep pockets they have access to, obtaining representation ought not to be a problem.
What is the likelihood of success in this case? It’s hard to say, because I‑1366 is unlike anything that has qualified for the ballot before.
Eyman has already attacked the lawsuit and pointed out that historically, Washington’s courts have been reluctant to set aside initiatives prior an election. The Supreme Court has said that a challenge merely on constitutional grounds (for instance, the single subject rule) is only germane after an initiative has become law.
However, the case filed today does not seek to have I‑1366 blocked simply because it is unconstitutional. Rather, the plaintiffs are arguing that I‑1366 should be set aside because it exceeds the scope of the initiative power.
It is very important to understand this distinction, because it underpins the case. As the Pacifica team noted in a letter to Attorney General Ferguson last week, there is a precedent for setting aside an initiative on scope grounds before an election.
The Supreme Court has recognized, however, that one basis for a pre-election challenge is where “the subject matter of the initiative is beyond the people’s initiative power.” Futurewise v. Reed, 161 Wn.2d 407, 411, 166 P.3d 708, 710 (2007).
To determine the subject matter of an initiative, the court looks at the “fundamental and overriding purpose” of the initiative. Philadelphia II v. Gregoire, 128 Wn.2d 707, 719, 911 P.2d 389, 390 (1996).
The “fundamental and overriding purpose” of I‑1366, as evidenced by its title and its advertising, is to invoke the process to amend the state constitution to require a two-thirds legislative supermajority or a public vote for approval of any measure that “raises taxes”.
The power to invoke the constitutional amendment process is not part of the Article II legislative power. Rather that power stems from Article XXIII of the Constitution. Article XXIII establishes a process that is “manifestly distinct from that involved in the enactment of ordinary bills and laws” and requires first that two-thirds of each house of the legislature must agree to submit the proposed amendment and then it must be approved by a majority of the voters.
This process, with its inherent safeguards, is the only method by which our state constitution may be amended.
See Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 232, 11 P.3d 762, 794, 27 P.3d 608 (2001) (The constitution may not be amended by statute or initiative.).
The Washington Supreme Court has definitively held that initiatives which seek to amend the constitution are not “legislative acts” and are therefore outside the scope of the initiative power.
See Ford v. Logan, 79 Wn.2d 147, 156, 483 P.2d 1247 (1971).
For the same reasons cited in Ford, the power to invoke the constitutional amendment process is outside the scope of the Article II legislative power. Under these circumstances, courts have granted injunctions to prevent the placement of improper initiatives on the ballot and avoid needless elections.
See Philadelphia II, 128 Wn.2d at 709.
The purpose of the above-excerpted letter to Ferguson was to ask him to rapidly initiate legal proceedings against I‑1366.
Writing on behalf of Ferguson, Deputy Solicitor General Jeffrey Even declined to do so within the short timeframe the plaintiffs gave him, and suggested the Pacifica team take action themselves on behalf of their clients — which they now have.
The plaintiffs’ prayer for relief in this case is pretty simple and straightforward. It principally asks for a declaratory judgment and an injunction to stop I‑1366.
Plaintiffs request the following relief:
- That the Court enter a declaratory judgment that 1–1366 exceeds the scope of the initiative power and therefore violates Article II and Article XXIII of the Washington Constitution;
- Such other relief as may follow from entry of a declaratory judgment;
- Entry of an injunction prohibiting placement of 1–1366 on the ballot for the November 2015 general election;
- Reasonable attorney’s fees, expenses and costs to the fullest extent allowed by law and equity; and
- Any further relief this Court deems necessary and proper.
By August 14th, a King County Superior Court judge will likely hear oral arguments in the case, and consider further written briefs from the plaintiffs and the defendants. There may also be amicus briefs filed by other interested parties. This is a high-stakes case and there is likely to be a lot of interest.
Whoever loses will almost certainly appeal to the Washington State Supreme Court and ask for an expedited review. Ballots are due to be mailed to overseas and military voters in mid-September, and the printing of ballots and completion of the voter’s pamphlet statement needs to happen before then.
So there’s not a lot of time for this case to stretch out. The judiciary will need to move more quickly than it ordinarily does in order to hear this case before the voting begins in the 2015 general election. Whatever the Washington State Supreme Court decides — assuming it hears the case on appeal — will be final.
We can’t assume that the court will block I‑1366. It’s simply wonderful that this legal challenge has been filed… and every Washingtonian who cares about upholding our Constitution and the values this state was founded upon should be grateful to Paul Lawrence and his colleagues tonight for bringing this action… but we need to be prepared for the possibility we won’t win.
That means continuing to organize opposition to I‑1366.
We at NPI will definitely continue to cover this legal challenge and report on all developments. At the same time, our efforts to aid in the assembly of campaign infrastructure to fight I‑1366 will go on as planned. We need to be ready for whatever happens. Should I‑1366 stay on the ballot, it is deserving of nothing less than a diverse, compelling, and well-constructed opposition campaign.
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