In the wake of the State Supreme Court’s decision to strike down I-1053, which required a two-thirds majority in the state legislature to increase taxes, there has been some heated rhetoric against the six justices in the majority.

In particular, Kirby Wilbur, the chair of the Washington State Republican Party, and Tim Eyman, the sponsor of I-1053, have accused these jurists of violating the will of the people and engaging in judicial activism.

Neither claim withstands scrutiny.

First, they appear to misstate the question presented to the Court.  The question the Court had to answer was whether the initiative is consistent with our State’s constitution.  That the voters have repeatedly enacted the initiative was never in dispute. Nevertheless, Eyman and Wilbur insist that the Court should have answered this question by referencing the number of times the initiative has been approved.  They appear to rely on the following syllogism: the people have repeatedly voted to enact a two-thirds rule, therefore the law is constitutional.  

But that is not a legal argument. The number of times an initiative is approved does not and cannot demonstrate the initiative’s constitutionality.  To answer the question presented, the Court had to determine what the Constitution means.

Eyman's preference, it seems, would be for activist judges to do the people's work by rewriting the state's constitution from the bench. Which brings us to the second charge leveled against the Court’s decision: that the six justices who voted to strike down the initiative are “activist.”  Far from it. The majority’s reasoning was based on our state’s constitutional history: the framers never intended for supermajority requirements to apply to normal legislation because that would fundamentally change how our government works.  Based on longstanding precedent, and the text of our state’s founding document, the justices reasoned that the two-thirds requirement could not be enacted by initiative. Allowing the constitution to be amended by initiative would permit a constitutional free-for-all, depending on where the political winds were blowing.

Far from an activist decision, the court’s reasoning is deeply conservative. It preserves an original understanding of our state’s constitution. Allowing the “will of the majority” to change that meaning is a dangerous argument for a conservative to make, given our voters’ increasing support for liberal candidates (and causes). Ironically, Eyman and Wilbur’s attempt to goad the court into a politically-based decision is the very definition of judicial activism.

Their preference, it seems, would be for activist judges to do the people's work by rewriting the state's constitution from the bench—rather than relying on a required constitutional amendment that must be passed by the legislature and the voters.

It may be that the two-thirds initiative is good law.  It may well be that the voters want it enacted.  But before it can become law, it will have to meet a two-thirds threshold of his own: to amend the constitution, Eyman will need a two-thirds vote in the House and Senate, and a majority vote of the people.

PubliCola's LawNerd David A. Perez is an attorney in Seattle.  He co-authored an amicus curiae brief on behalf of the League of Women Voters of Washington, urging the Court to strike down the Two Thirds Initiative because it is inconsistent with the text and history of our State’s Constitution.  He received his B.A. from Gonzaga and his J.D. from Yale Law School.  Follow him on Twitter: @davidaperez1.

Show Comments