It's a bummer that LawNerd doesn't write for us anymore. A historic public policy case was argued in front of the State Supreme Court last week (a crew of Democratic state legislators and education advocates are challenging the constitutionality of  I-1053, the legislative rule requiring a two-thirds majority to raise taxes) and we didn't have a legal brain to write about it.

Luckily, one of the attorneys who's working to repeal the law, David Perez, was listening to KUOW last week when Washington State Attorney General Rob McKenna—whose office is defending 1053—was asked about the case. Perez didn't like what he heard.  

And so, Perez, who wrote an amicus brief in the case arguing that the law is unconstitutional, is today's temporary LawNerd.—Eds.

Last Friday, on KUOW, Attorney General Rob McKenna was asked about the research we presented to the State Supreme Court, which showed that the Framers understood the phrase "unless a majority" to mean a simple majority -- not two-thirds.

Our research into the Constitutional Convention debates proves that Tim Eyman's two thirds Initiative is invalid because it effectively amends our constitution through the initiative process. But instead of responding to our argument, Mr. McKenna dismissed it out of hand because the constitutional debate we discovered dealt with county boundaries, rather than taxation. With all due respect to the Attorney General, this response was rather shallow.

As our State's top attorney, Mr. McKenna knows that whenever courts are asked to interpret the meaning of a particular phrase, they look to other parts of the same document (whether it's a statute or a constitution) to see whether the meaning can be divined from context or otherwise. That's basic statutory/constitutional interpretation that lawyers practice everyday.

In this case, the State admits that the context for the provision at hand -- Article II, Section 22, which governs how bills are passed -- does not necessarily support their position that the phrase sets a floor not a ceiling. But according to Mr. McKenna, it doesn't foreclose their argument. Fair enough.

Mr. McKenna also argues that "unless a majority" was designed to ensure that a majority of the full legislature -- rather than a majority of a quorum present -- would have to approve a law. Everyone agrees that a majority of a quorum is insufficient to pass a law. But that doesn't mean that the reference to majority allows for the bar to be raised to two thirds of the entire legislature.

Which begs the question: what did the Framers, who drafted this provision in the first place, mean by the phrase "unless a majority?" If they intended to created one absolute threshold -- a simple majority -- then the State's argument is a house of cards.

And, in fact, Mr. McKenna concedes that the Article XI debates -- the only other section where the phrase "unless a majority" appears -- proves that the Framers understood this phrase to mean a simple majority. He said as much during the interview. But after making this extraordinary concession, Mr. McKenna tries to make a superficial distinction: because one provision deals with vote thresholds to change county boundaries, and the other deals with the threshold to pass laws, we should ignore the fact that it's the exact same phrase.

Here's the bottom line: the research from the Constitutional Convention in 1889 shows that the Framers were deliberate about their vote thresholds. In Article XI, section 2, the Framers debated and settled on the phrase "unless three-fifths" to set the threshold for changing the location of a county seat. But in the very next provision the Framers debated -- quite vigorously -- the same phrase and settled on "unless a majority" to set the threshold to change county boundaries. They explicitly rejected "two-thirds" or "three-fifths" not once, not twice, but eight times. The Framers considered two-thirds and three-fifths to be too prohibitory. The debate on these provisions show that the Framers knew how to set vote thresholds, even when using negative phrasing. They weren't just setting a floor -- they were very precise.

This debate proves what they meant by "no bill shall pass unless a majority" approves it: a simple majority can vote to change county boundaries, and pass laws, including tax legislation. It's that simple.

As an attorney, I would expect that Mr. McKenna would explain why the distinction that he draws matters. I would also expect him to present some evidence to indicate that the Framers used the same phrase, in the same document, referencing the same issue (vote thresholds), but intend two different -- indeed contradictory -- meanings. But unfortunately Mr. McKenna doesn't seem to be intellectually engaged in the actual merits of the case.

David Perez, an attorney at Perkins Coie LLP, wrote an amicus brief pro bono for the League of Women Voters, who signed on to the recent Supreme Court case challenging Tim Eyman's two-thirds rule.