Washington voters approved BP, Tesoro, and Tim Eyman’s undemocratic, unconstitutional, unfair, oil-industry Trojan Horse I-1053, imposing minority rule on the state legislature for closing tax loopholes and raising new revenue.

Now, the state will suffer the consequences: A balanced response to the state budget crisis is impossible; instead, there will be another two years of deep, painful cuts to services like hospice care for seniors. A legislative path to putting a price on carbon pollution is now closed for at least two years. Even a paltry 1 cent-per-gallon hazardous substances tax increase, to help keep oil out of Puget Sound, will only be possible through a successful, and extremely expensive ballot campaign.

Some have asked me, is there a legal strategy to overturn I-1053?

There should be, insofar as it is—I repeat—blatantly unconstitutional. In practice, unfortunately, a save by the courts is unlikely. Unless the lieutenant governor . . . well, I’m getting ahead of myself.

  • I asked attorney Hugh Spitzer, who teaches state constitutional law at the University of Washington Law School and has written the definitive legal book on the Evergreen state’s charter. He explained that the state supreme court has carefully avoided making a judgment on the constitutionality of minority rule. In general, it studiously avoids interfering in legislative matters. Not only that: it cannot rule unless the law is first broken and then challenged.

    What could force the court to issue a judgment on I-1053’s constitutionality? First, the legislature would have to pass a tax increase or something that had the same effect by less than two-thirds. That is, the legislature would have to ignore I-1053’s minority-rule provisions.

    Then, some outside party would have to bring suit against the tax as void because its passage violated I-1053. At that point, the courts would have little choice but to adjudicate the constitutionality of 1053.

    Unfortunately, no such case will emerge unless leadership of both houses in Olympia ignore 1053. But Lieutenant Governor Brad Owen, who has presided in the state senate since 1996, has consistently enforced minority rule, under each variation that voters have approved.

    Mr. Spitzer says that if and when the members of the court finally have the question squarely before them, they will almost certainly rule I-1053 unconstitutional. The state constitution is specific about how voting on bills must take place. It specifies that votes be recorded as “yea” and “nay” in a tally and that when at the end of the tally, the yea’s exceed the nay’s, the bill passes into law. Repeat: not two-thirds but when the yea’s exceed the nay’s.

    Therefore, the supreme court is unlikely to invalidate I-1053, unless the Lieutenant Governor changes his mind. Anyone have an “in” with Brad Owen?


    Updated 11/16/2010 to remove a mistake about fees.