Democratic lawmakers seek to overturn supermajority for taxes

Feb 27, 2012

Washington voters consistently send Democratic majorities to the statehouse. But four times over the past 20 years they’ve also voted to require a supermajority of the legislature to raise taxes. Most recently, in 2010. Now a group of Democratic lawmakers and their allies are challenging the constitutionality of that two-thirds rule.

Oral arguments are scheduled for March 9th.

This legal challenge began with a bit of theater on the floor of the Washington state House. This was last May. Democrat Laurie Jinkins brought to the floor a proposal to end a tax break for banks and dedicate the money to education.

Jinkins passionately believed in her bill, but on this day she knew it didn’t have the votes to pass. Still, she wanted to get Speaker of the House Frank Chopp on the record saying as much.

“Mr. Speaker what is the number of votes required for final passage of Substitute House Bill 2078?” Jinkins asked.

Speaker Chopp’s answer was in legalese. But the upshot was this. It would take a two-thirds vote of the House to end that tax break for banks. Not a simple majority.

Today, Jinkins explains that highly scripted back and forth on the floor was designed to create a pretext for a lawsuit.

“You know a lot of that exchange was really our attempt to illustrate quite clearly for the courts the constitutional conundrum,” she says.

A constitutional conundrum

Here’s that conundrum, as she puts it. On the one hand, Washington’s constitution says it takes a simple majority vote to pass legislation. But Initiative 1053 from two years ago requires a supermajority for tax votes -- that’s two-thirds of the legislature.

Is that constitutional? Jinkins, an attorney, doesn’t think so. So she filed a lawsuit along with 11 of her fellow legislative Democrats, Washington’s teachers’ union and a host of others.

“We need to have a decision,” says Democratic State Senator David Frockt, also an attorney. He is among those challenging the supermajority requirement.

“We could be right, we could wrong, I think we’re right," Frockt says. "I think we’ve got a really strong argument. But I think it would be a really bad thing if we don’t have a decision one way or another. We need to know.”

Democratic Governor Chris Gregoire agrees. She’s not taking sides in the case, but is urging the courts to step in and referee.

In the past, judges unwilling to consider

Historically, judges in Washington have been unwilling to consider challenges to the two-thirds threshold. Republican Attorney General Rob McKenna hopes that’s the court’s position again this time.

“What we have here is a classic case of a group of plaintiffs being dissatisfied with the outcome they achieved in the legislative process," McKenna says. "Now they’re seeking redress in the judicial process and it’s not properly before the court. This is still a political question, a legislative question. Not a question for the judiciary.”

As Attorney General, McKenna’s office is tasked with defending this voter-approved law. McKenna says even if the courts take the case, the plaintiffs are misreading Washington’s constitution.

“There’s no limitation we find in the constitution that prevents the supermajority rule from being enacted,” he says.

Personally, McKenna –- who’s a candidate for governor -- says he supports the higher threshold for tax votes. His opponent Democratic Congressman Jay Inslee does not.

A personal affront

Someone who’s not a party to the lawsuit, but will be in court for oral arguments is professional initiative promoter Tim Eyman. He sponsored I-1053 and considers the lawsuit to overturn it a personal affront.

“Like watching one of my kids getting mugged on the way to school,” he says.

Eyman says the lawmakers behind the lawsuit are just trying to thwart the will of the people.

“No, that’s not true,” says Representative Jinkins. “I love our constitution, I believe in our form government and I believe we ought to abide by our form of government.”

Both sides are scheduled to make their case in Superior Court in Seattle on March 9th. Whatever the judge decides, the losing side will almost certainly appeal to the Washington Supreme Court.

Undeterred, Tim Eyman has already filed another supermajority initiative for this fall.