SEATTLE — A judge said he intends to rule Thursday on the legality of Tim Eyman’s latest measure, an initiative that opponents say puts “a gun to the head” of the Legislature by threatening a drastic cut to the state sales tax unless lawmakers propose a constitutional amendment making it harder to raise taxes.
Voters approved Initiative 1366 in November. The measure would cut the sales tax by one percentage point, beginning in April, unless the Legislature allows a public vote on an amendment that would require a two-thirds supermajority for future tax increases.
Opponents, including two Democratic lawmakers and the League of Women Voters of Washington, sued, saying constitutional amendments can’t be proposed by initiative and the measure violates the rule that initiatives be limited to a single subject.
Attorney Paul Lawrence told King County Superior Court Judge William Downing during arguments Tuesday that voters who favor a cut in the sales tax may have felt compelled to vote for the initiative even if they oppose the provision for a two-thirds supermajority, or vice versa.
“The purpose of the prohibition against two subjects is to prevent logrolling — that is, the passage of one measure by attaching it to another,” Lawrence said. “Voters must be given the opportunity to cast a vote that clearly demonstrates their support for either or both measures. We don’t have that here.”
But lawyers for Eyman and for the state, which is defending the voter-approved measure, responded that I-1366 is perfectly legal. The important thing is that the voters decided to cut the sales tax from 6.5 percent to 5.5 percent; the initiative simply does not require lawmakers to do anything, no matter how unpalatable they may consider the resulting loss of revenue, argued Deputy Solicitor General Callie Castillo.
To violate the two-subject rule, an initiative must enact separate laws, she said. Eyman’s measure doesn’t: The first section calls for the tax cut, and the second sets its effective date, making the date contingent on whether lawmakers pose the two-thirds amendment. Standing alone, the second section is not its own law, but meaningless, she said.
“That is not an example of logrolling,” Castillo said. The voters “did not force the constitutional amendment or change the process for a constitutional amendment. They expressed a policy preference for the constitutional amendment.”
On legislators’ schedule
The arguments came as the Legislature wrestles with how to respond to the initiative. The tax cut would slash state revenue by an estimated $8 billion through the middle of 2021, at a time when lawmakers are still trying to figure out how to respond to court rulings demanding vast increases in education and mental health spending. The Senate Government Operations and Security Committee is planning a hearing on proposals for the constitutional amendment Thursday — the same day the judge said he would rule.
Lawrence, the opponents’ lawyer, described the sales tax cut this way: “Putting a gun to someone’s head is really a threat. It is not an encouragement.”
Eyman, a longtime anti-tax activist, has previously sponsored initiatives requiring a supermajority vote on taxes. The state Supreme Court struck down that requirement in 2013, saying it was unconstitutional.
Eyman sat alone in a wooden bench during Tuesday’s arguments, nodding vigorously and slapping his thighs at points he liked. Afterward, he called his opponents sore losers and said he was confident of victory but knows the issue will likely be decided at the state Supreme Court. The initiative was simple, he said, and voters had no trouble understanding it.
“The courts should be upholding what the voters decide,” he said. “You can’t insult the voters’ intelligence.”
Opponents also sued last summer to keep the measure off the ballot. In August, King County Superior Court Judge Dean Lum found that I-1366 did appear to exceed the initiative power. The state Constitution cannot be amended by initiative, he said, nor can the process of amending the Constitution be proposed by initiative. Instead, amendments must originate in either house of the Legislature.
Nevertheless, Lum declined to block the initiative from the ballot. The Supreme Court agreed that the measure shouldn’t be blocked from the ballot, but said its legality was unclear, opening the door for opponents to continue their legal efforts against it.
