Washington State Attorney General (and GOP gubernatorial candidate) Rob McKenna didn't defend the two-thirds rule during this week's big Washington State Supreme Court case—an attorney from his office, Maureen Hart, drew the straw and jousted with the challengers, a crew of Democrats and education advocates being represented by liberal attorney Paul Lawrence.

But McKenna was on KUOW this afternoon and made the case for the two-thirds rule—colloquially known as 1053, Tim Eyman's 2010 initiative which requires a two-thirds majority vote of the state legislature to raise taxes.

The case comes down to this: Does Article 2, Section 22 of the state constitution—which says "a majority" of legislators must vote yes to pass a law—set a ceiling or a floor on the vote count. Opponents of 1053 say it sets a ceiling?


Well, here's McKenna.

KUOW:  What are your thoughts about the supermajority requirement?

McKenna: As a matter of policy, I think it’s a good idea.  The voters will likely approve it for a fifth time in November.  I believe strongly in the rule of law.  When the voters make a decision and make it as clearly as they did here we ought to respect that.  Instead the legislature and the Governor have been effectively repealing it time and time again.  And I think that’s mistaken.  If the voters believe it ought to be harder to raise taxes, I think they have a right to pass a law that should be honored.

At the same time, I’m defending this law through my office and the state Supreme Court, and I believe that we’re going to prevail in the court.  First of all, the Supreme Court is likely to not reach the constitutional question; they’re likely to reach the same conclusion they have before when asked to rule on this issue.  They’re going to say ‘look this is a political question for the legislature, it’s not properly before the court right now’.  If you’ll forgive a bit of legalese it’s not a justiciable controversy.

If they were to rule on the constitutionality I think they would uphold it. The opponents of two-thirds who are very frank in saying they want to overturn it in order to raise taxes, are hanging their case on a few words in the state constitution that refer to the requirement that a majority of legislators be present in order to pass legislation.

We understand that very clearly.  What they [the founding fathers] are saying is if you’ve got 49 state Senators, you can’t have only 20 of them present and pass a law by a vote of 11 to nine.  They’re saying you have to have a majority present and then you can have a vote, and then a majority have to vote for it, a majority of the legislature.  So, I think that’s what that clearly means. And it was not intended to be a ceiling on a voting requirement to pass bills. [This is reference to the quorum argument that Justice James Johnson made during the oral argument on Tuesday.]

KUOW: We talked to an attorney last week who said that his research into the constitutional debates, how the constitution came together, found that majority, in the sense of taxes, was not clearly defined. But in another part of the debates, they clearly defined it as 50 percent plus one.  He said in a friend of the court brief, said that shows that’s what they meant, they meant 50 percent, plus one, not a two-thirds as a majority.

McKenna:  Mr. Perez did some very good research into the constitutional convention, and he focused on the report of a debate over what the vote should be to create a new county.  And that’s the context in which that occurred.  So clearly, they did decide, they wanted a certain standard for establishing a new county in the state.  But that’s not the same thing as saying that you can’t have a two-third vote requirement for tax increases.  That’s an entirely different kind of issue for a different kind of vote.

For context (on stuff like what "justiciable" means, for example ... it means the court can decide on the case) and for all coverage of this important court battle—start here and click your way though our reports going back to the initial arguments in King County Superior Court.

You'll also find an argument against McKenna's notion that the majority rule is a floor not a ceiling; Justice Tom Chambers, in fact, made the argument in court this week: If the majority requirement is simply a floor does that mean all sorts of new requirements could be added on in order to pass a law, such as the requirement that Santa Claus sign the bill? Or I suppose, Tim Eyman?
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