Tim Eyman’s Initiative 1366 survived a request for an injunction Friday that would have kept it off November's ballot.
I-1366 gives the Washington State Legislature a choice between lowering the Washington sales tax by one cent on the dollar or approving an amendment to the state constitution to require super-majority two-thirds votes to raise taxes. This comes after an Eyman initiative to require super-majority approval of taxes won at the ballot box in 2014 but was then struck down as unconstitutional.
Some have described Eyman’s latest attempt as blackmailing lawmakers into overriding the court’s decision. Eyman, however, said Friday the initiative was to “protect taxpayers.”
Eyman and company gathered enough signatures to qualify the initiative for the November ballot. But in late July, a group of lawmakers, elected officials and citizens filed a lawsuit with the King County Superior Court to stop the initiative from ever going to voters.
Tony Lee, a fellow with the non-profit Solid Ground, was among those who filed the suit. He said Friday he was concerned about the negative effect a sales tax cut, amounting to about $1.4 billion, would have on social services and education. “It would make it very difficult to take care of our children,” he said, referencing the state Supreme Court's McCleary mandate to fund education.
It is exceedingly rare for a court to strike down an initiative before it goes to the voters. Courts tend to wait until after the vote before weighing in on a measure's constitutionality. However, pre-ballot challenges are allowed even if often futile. “We know it’s unconstitutional,” said Lee of the initiative. “For us, the question is not if, but when. We’d prefer before the election.”
“Opponents are really desperate,” said Eyman in advance of the ruling. “Protecting taxpayers and funding services are not mutually exclusive.”
On the one side, attorney Paul Lawrence represented the plaintiffs seeking the injunction; on the other, Richards Stephens represented Eyman and Rebecca Glasgow spoke on behalf of Republican Secretary of State Kim Wyman, who joined in defending the initiative’s right to a vote.
The arguments from each side essentially boiled down to whether Judge Lum should focus on the explicit or fundamental purpose of Eyman’s initiative. Lawrence, on behalf of the plaintiffs, hammered the point that the essential purpose of the initiative is to enact a constitutional amendment, which cannot be legally done by way of an initiative. “You have to call this initiative what it is,” he said. “An amendment.” Lawrence argued the sales tax decrease, which in and of itself is a legitimate initiative item, is simply a means to an end.
Glasgow and Stephens, however, invoked the rarity of blocking an initiative to argue that there must be no doubt that an initiative is unconstitutional. “Removing a statewide initiative from the ballot would be unprecedented,” said Glasgow, “unless it’s clear that it infringes on the constitution.” Glasgow argued that the question is not clear, and the initiative should be allowed on the ballot.
Also at issue was whether running an initiative was a First Amendment issue. This issue is tricky because there is little explicit precedent. Lawrence pointed to several cases saying there is no First Amendment right to have an initiative. However, the question raised by Glasgow and Stephens as well as Judge Lum, was whether initiatives should be seen as “collective expression” – something more similar to a resolution than a law. Could denying Eyman’s initiative, even if it is eventually deemed unconstitutional, improperly prevent the voting public from expressing a desire for a constitutional amendment?
In his opinion, Judge Lum did not weigh in on this question of First Amendment rights. He did write that Eyman's measure "appears to exceed the scope of the initiative power," siding with Lawrence that this was an attempt to amend the constitution. But Lum did not feel there was enough precedent set in Washington State to say this initiative should be excluded from the ballot. "The Supreme Court may clarify this issue prior to the election," he wrote, "but this court cannot."
The Supreme Court will get its chance, as the plaintiffs immediately announced they would file an appeal. "If the high court doesn’t choose to remove this attempt to undercut democracy from the ballot before the election," read a statement from the Washington Budget and Policy Center, "we are confident it would overturn it after the November election."
In a statement, Eyman said he was, "very happy that the people's First Amendment right to vote on the initiative was recognized and affirmed by the court this afternoon."
The appeal needs to be settled by early September, which is the cutoff for the ballot.
This story first appeared on Aug. 14.