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.

Wednesday, June 1st, 2016

Supreme Court’s ruling against I‑1366 sets important precedent against hostage-taking

Last Thurs­day, when the Wash­ing­ton State Supreme Court issued its unan­i­mous ver­dict in Lee v. State, it did­n’t mere­ly bury Tim Eyman’s I‑1366 in Wash­ing­ton’s polit­i­cal grave­yard… it also set a wel­come and impor­tant prece­dent against the pol­i­tics of hostage-tak­ing.

[Don’t know who Tim Eyman is? Read this. Don’t know what I‑1366 is? Go here.]

This aspect of the rul­ing has yet to receive much atten­tion, per­haps in part due to scant news cov­er­age (there have, amaz­ing­ly enough, been more news­pa­per edi­to­ri­als pub­lished in response to the deci­sion than news arti­cles). So I’m going to use this post to dis­cuss it, as well as to cel­e­brate it.

Loy­al read­ers of the Cas­ca­dia Advo­cate will recall that I‑1366 was Tim Eyman’s delayed response to the Supreme Court’s rul­ing in League of Edu­ca­tion Vot­ers (LEV) v. State. In that land­mark deci­sion, the Court struck down the main clause of a series of ini­tia­tives dat­ing back to 1993 that uncon­sti­tu­tion­al­ly attempt­ed to require a two-thirds vote of Wash­ing­ton’s Leg­is­la­ture to raise rev­enue.

(The first of those ini­tia­tives was I‑601, which appeared on the bal­lot in 1993; the lat­ter three were Tim Eyman’s I‑960, I‑1053, and I‑1185).

The Court had pre­vi­ous­ly been asked to toss the two-thirds rule in three pri­or cas­es — Walk­er v. Munro, Future­wise v. Reed, and Brown v. Owen — but declined each time to issue a rul­ing on the mer­its. The group of plain­tiffs that brought the fourth chal­lenge opt­ed to pur­sue a dif­fer­ent legal strat­e­gy, in the hopes it would pro­duce a more air­tight case that could­n’t be dis­missed on a tech­ni­cal­i­ty.

And it did. In Feb­ru­ary of 2013, the Court hand­ed down a rul­ing uphold­ing Arti­cle II, Sec­tion 22 of Wash­ing­ton’s Con­sti­tu­tion, where the Ever­green State’s cher­ished tra­di­tion of major­i­ty rule (which dates back to state­hood) is enshrined.

Writ­ing for the major­i­ty, Jus­tice Susan Owens declared:

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.

Empha­sis is mine.

Left with no choice but to accept the Court’s deci­sion, an unhap­py Tim Eyman began clam­or­ing for a con­sti­tu­tion­al amend­ment to make the two-thirds vote scheme for rais­ing rev­enue a per­ma­nent part of Wash­ing­ton’s high­est law.

It did­n’t take long for Eyman to dis­cov­er just how high of a bar two-thirds tru­ly is. The fol­low­ing pic­togram shows that when an action requires a two-thirds vote to pass, just over one third are in con­trol of the out­come.

Pictogram: Don't mess with our Constitution

Don’t mess with our Con­sti­tu­tion

Because the Con­sti­tu­tion is where minor­i­ty rights are pro­tect­ed, the Con­sti­tu­tion appro­pri­ate­ly requires minor­i­ty con­sent to amend. At the same time, the Con­sti­tu­tion also pro­tects major­i­ty rule by spec­i­fy­ing that a major­i­ty vote shall be the thresh­old for the pas­sage of ordi­nary laws. It’s a bal­ance.

Arti­cle XXIII spells out the spe­cif­ic process for amend­ments.

To be added to the Con­sti­tu­tion, an amend­ment must first be pro­posed by one or more of Wash­ing­ton’s elect­ed rep­re­sen­ta­tives in the Leg­is­la­ture. It must then receive a two-thirds vote of the House and the Sen­ate. Final­ly, it goes to the peo­ple for rat­i­fi­ca­tion by major­i­ty vote at an elec­tion. If a major­i­ty votes yes, the amend­ment is adopt­ed; if not, the amend­ment is defeat­ed.

Fit­ting­ly, thanks to the LEV deci­sion, the Eyman camp won’t ever be able to reim­pose the two-thirds require­ment unless two-thirds of each house of the Leg­is­la­ture wish­es to do so. Two-thirds is now required for two-thirds.

In con­cert with his cohorts at the Wash­ing­ton Pol­i­cy Cen­ter, Eyman began loud­ly bang­ing the drum for an amend­ment, but he did­n’t get any­where.

Find­ing no Demo­c­ra­t­ic leg­is­la­tors to be inter­est­ed in sab­o­tag­ing Arti­cle II, Sec­tion 22, Eyman decid­ed to mim­ic failed Repub­li­can pres­i­den­tial can­di­date Ted Cruz and extort Demo­c­ra­t­ic leg­is­la­tors into doing his bid­ding through a new ini­tia­tive.

Eyman and his inner cir­cle devised an incred­i­bly mean-spir­it­ed, mali­cious scheme stip­u­lat­ing that Wash­ing­ton’s largest sin­gle source of rev­enue, the sales tax, would be dras­ti­cal­ly cut unless the Leg­is­la­ture passed Eyman’s desired amend­ment. The first attempt to qual­i­fy this hostage-tak­ing ini­tia­tive to the bal­lot end­ed in fail­ure in 2014, but Eyman was able to secure the fund­ing nec­es­sary to force a vote on a sec­ond iter­a­tion (I‑1366) in 2015.

NPI opposed I‑1366 togeth­er with a bipar­ti­san coali­tion of car­ing Wash­ing­to­ni­ans that includ­ed Democ­rats, Repub­li­cans, and inde­pen­dents.

Despite not hav­ing much mon­ey to work with, the coali­tion fought Eyman’s camp to a near draw, los­ing by only 44,834 votes in the low­est-turnout gen­er­al elec­tion in Wash­ing­ton State his­to­ry. Fol­low­ing the elec­tion, NPI sup­port­ed the effort to van­quish I‑1366 in court, which con­clud­ed suc­cess­ful­ly last Thurs­day with the Supreme Court’s ver­dict.

In reach­ing its deter­mi­na­tion, the major­i­ty of six jus­tices held that I‑1366 was uncon­sti­tu­tion­al pri­mar­i­ly because, like Eyman’s Ini­tia­tives 695 and 722 before it, I‑1366 vio­lat­ed Arti­cle II, Sec­tion 19 — the sin­gle-sub­ject rule, also known as the Con­sti­tu­tion’s anti-logrolling pro­vi­so.

But mind­ful of the dan­ger of future ini­tia­tives like I‑1366, the major­i­ty went on to opine that I‑1366 is also uncon­sti­tu­tion­al under an Arti­cle XXIII analy­sis.

Wrote Chief Jus­tice Bar­bara Mad­sen on behalf of the major­i­ty:

Final­ly, the sec­ond sub­ject of I‑1366 — whether it be a con­sti­tu­tion­al amend­ment or a change to the way all future tax­es and fees are approved — alters the process for amend­ing our state con­sti­tu­tion, which runs afoul of arti­cle XXIII. The process­es for amend­ing the Wash­ing­ton State Con­sti­tu­tion are out­lined in arti­cle XXIII, sec­tion 1. Arti­cle XXIII states that “[a]ny amend­ment … to this Con­sti­tu­tion may be pro­posed in either branch of the leg­is­la­ture; and if the same shall be agreed to by two-thirds of the mem­bers elect­ed to each of the two hous­es,” it will be sub­mit­ted to the vot­ers at the next gen­er­al elec­tion. CONST. art. XXIII, § 1. A con­sti­tu­tion­al amend­ment may not be pro­posed or enact­ed through ini­tia­tive. See gen­er­al­ly id.; Huff, 184 Wn.2d at 651 (“an ini­tia­tive must pro­pose the enact­ment of a law and not the amend­ment of the con­sti­tu­tion”).

After cit­ing Ford v. Logan, she added:

The State argues that sec­tion 3 of 1–1366 does not vio­late arti­cle XXIII because the leg­is­la­ture would still have to go through the process­es out­lined in arti­cle XXIII. Whether true or not, this argu­ment fails to appre­ci­ate the “do this or else” struc­ture of the ini­tia­tive. If the leg­is­la­ture does not pro­pose the amend­ment, it will be faced with a $1.4 bil­lion-per-year loss in rev­enue.

This struc­ture, tak­en to its log­i­cal con­clu­sion, estab­lish­es a new process for amend­ing the con­sti­tu­tion.

The new norm would be for ini­tia­tive spon­sors to pair one dras­tic or unde­sir­able mea­sure with an ulti­ma­tum that it go into effect unless a spe­cif­ic con­sti­tu­tion­al amend­ment is pro­posed to the peo­ple.

This new process amounts to a small per­cent­age of vot­ers effec­tu­at­ing a con­sti­tu­tion­al amend­ment by two major­i­ty votes and is sim­ply not one con­tem­plat­ed by the con­sti­tu­tion, even if fur­ther action is required by the leg­is­la­ture. Because the sec­ond sub­ject estab­lish­es a new process for amend­ing the con­sti­tu­tion, it also vio­lates arti­cle XXIII.

Empha­sis is mine. The Court’s remain­ing three jus­tices went even fur­ther in a con­cur­ring opin­ion authored by Asso­ciate Jus­tice Steven Gon­za­lez, argu­ing:

The most direct, sim­ple, and clear way to resolve this case is to rec­og­nize that Ini­tia­tive 1366 sets arti­cle XXIII on its head.

The ini­tia­tive ignores the con­sti­tu­tion­al­ly required first step — the pro­pos­al of a con­sti­tu­tion­al amend­ment in either house. (WASH. CONST. art. XXIII, § 1.)

The ini­tia­tive then skips the con­sti­tu­tion­al­ly required sec­ond step — a super­ma­jor­i­ty vote in each house approv­ing the amend­ment — and jumps direct­ly to some­thing like the third — rat­i­fi­ca­tion of the vot­ers before any vote in the leg­is­la­ture. Only then does it jump back to the con­sti­tu­tion­al­ly man­dat­ed sec­ond step — a two thirds vote of each house to place a con­sti­tu­tion­al amend­ment on the bal­lot. Clerk’s Papers at 25 (Ini­tia­tive 1366, § 3). Ini­tia­tives are not the prop­er vehi­cle to amend the con­sti­tu­tion. Ini­tia­tive 1366 is uncon­sti­tu­tion­al.

With these obser­va­tions, I join the major­i­ty in result.

The two excerpts above are with­out ques­tion my favorite pas­sages from this ver­dict. I hope read­ers of this post will go back and read them sev­er­al times to tru­ly appre­ci­ate them. With these words, the Court is set­ting a much-need­ed prece­dent for the future that will help pro­tect our great state against mil­i­tants like Eyman who would resort to the destruc­tive pol­i­tics of hostage-tak­ing.

Our Supreme Court has now unam­bigu­ous­ly declared that schemes that attempt to use the ini­tia­tive pow­er to black­mail the Leg­is­la­ture into invok­ing its pow­er to pro­pose con­sti­tu­tion­al amend­ments are them­selves uncon­sti­tu­tion­al. Hope­ful­ly, this will deter future ini­tia­tives like I‑1366. But even if it does not, there will be a prece­dent ready to be cit­ed should a post-elec­tion legal chal­lenge be nec­es­sary.

As loy­al read­ers are like­ly well aware, the team at NPI has argued all along that I‑1366, like I‑1325 before it, vio­lat­ed Arti­cle XXIII, but it is our state Supreme Court’s inter­pre­ta­tion of the Con­sti­tu­tion that is bind­ing upon every­one.

As Jus­tice John Mar­shall declared in Mar­bury v. Madi­son, the 1803 case that now under­pins Amer­i­can con­sti­tu­tion­al law: “It is emphat­i­cal­ly the province and duty of the judi­cial depart­ment to say what the law is.”

The Court is to be com­mend­ed for faith­ful­ly dis­charg­ing its duty and unan­i­mous­ly uphold­ing our Con­sti­tu­tion in the face of promis­es by Eyman and peo­ple in his camp to “unelect” those lead­ers who get in the way of their agen­da.

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One Comment

  1. Is Eyman respon­si­ble for pay­ing the court costs?

    # by Mike Barer :: June 1st, 2016 at 4:52 PM