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.
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.
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.