Will the Supreme Court finally rule on tax supermajority?
Opponents of initiative-created supermajority requirements for tax increases were celebrating last week.
A King County Superior Court judge had ruled that the extra hurdle to raise taxes or even close loopholes could be created only by amending the state constitution. And since Washington does not permit such amendments by statute or by initiative, Initiative 1053 is invalid, ruled Judge Bruce Heller.
“I’m overjoyed to see that the court ruled in our favor on every substantive point,” said Tacoma Democratic Rep. Laurie Jinkins.
But the celebration might be short-lived. Both sides want the case to go directly to the state Supreme Court. That is the venue where cases asking the exact same questions have not fared well.
When I say they haven’t fared well, I don’t mean the court has ruled that imposing a two-thirds majority requirement for taxes can be done by initiative or by the Legislature without requiring a constitutional amendment.
In fact, the court has never said that. Despite having three cases on that question, the court each time has found a procedural reason to avoid the issue. Will this time be any different? Heller addressed the procedural issue in his short summary judgment Thursday.
“Plaintiffs present a justiciable controversy and have standing to bring this action,” Heller wrote. Justiciable is legal lingo meaning the case is, in fact, properly before the court. That allowed Heller to do what the top court has not done, rule on whether the constitutional requirement that laws receive a simple majority can be exceeded by an initiative.
Will Heller’s ruling force the Supreme Court to either agree or disagree? Or will the court once again say the case isn’t properly brought?
The cleanest way to get the issue to the court is for both the House and Senate to pass a tax hike with a simple majority, have it signed by the governor and let proponents of the supermajority, such as initiative sponsor Tim Eyman, file suit.
But Democrats in the Legislature either can’t or don’t want to take such a tough vote (which might be one reason the justices who have to run for office too are reluctant to take the tough vote for them).
So they have looked for other pathways. In Brown v. Owen, Democratic lawmakers hoped that having the presiding officer of the Senate tell them they needed two-thirds for a tax hike was enough to ask the court to overrule him.
This time the House passed a loophole closure with a simple majority but it was declared failed by House Speaker Frank Chopp. Before the vote, three House Democrats including Jinkins engaged in a scripted exchange with Chopp in which he said only the court could overrule the two-thirds requirement.
Should the justices finally let opponents get by the procedural blockage, there are indications from earlier decisions that some on the court agree with Heller on the substantive issue. But the only way to know what a majority thinks for sure is to cue it up and take a vote.
Proponents such as Eyman use a legal argument to support their position – that the constitution sets a floor for passage, not a ceiling.
They also make a political argument – that the supermajority is the will of the people proved by four different public votes. If it’s a close constitutional call, the court should defer to the voters.
But in constitutional law, majority doesn’t rule. A constitutional protection is not subject to the will of the majority.
Those who are outraged by such a concept might be more supportive if their rights, their issues were at stake. The state constitution, for example, provides more explicit gun-ownership rights than the U.S. Constitution. It also spells out personal privacy protections absent from the U.S. Constitution.
Disagree? Get a two-thirds vote in the House and Senate and a majority of the voters. That’s the burden the constitution places on amendments and indicates that the drafters knew what a supermajority was.
Jinkins, a plaintiff, is hopeful but realistic about the lawsuit’s chances with the Supreme Court.
“In the end, the most important thing is to have an answer to this question,” she said. “I, of course, want the answer to be that the statute is unconstitutional, but even if the court ruled otherwise, it would give us the guidance we need to move forward.”
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