The latest returns have Initiative 1366 leading by 53.13 percent to 46.87 percent. But even if that lead holds, the measure will be challenged in court.

I-1366 would reduce the state sales tax from 6.5 percent to 5.5 percent on April 15, 2016 — unless the state Legislature refers a constitutional amendment to voters requiring a two-thirds vote of the Legislature to increase taxes. (See our policy brief on the initiative for the details.)

Earlier this year, there was some question about whether the initiative would even be allowed on the ballot. A King County Superior Court judge said it should be on the ballot, and the state Supreme Court affirmed that ruling in September. (In its order, the Supreme Court said that there would be "an opinion explaining the court's reasoning . . . in due course." That opinion has not yet been released.)

Although the King County Superior Court judge ordered that the initiative go to voters, he also wrote that

. . . although the ultimate decision is obviously the Supreme Court's, there is a substantial possibility that I-1366 will be found to be invalid for exceeding the scope of the initiative process, and that voters will be voting on a measure which will never go in to effect. Plaintiffs have alluded to additional Constitutional and other substantive challenges to I-1366 which would make it susceptible to post-election invalidation, including most prominently an alleged violation of the two subject rule.

Indeed, as Austin Jenkins writes,

Paul Lawrence, an attorney with Pacifica Law Group, argued 1366 violates the single subject rule for initiatives and runs afoul of the requirement that the legislature initiate constitutional amendments. He said a court challenge to keep it from becoming law is now likely.

“The idea would be to seek an expedited, quick resolution so that you’d get a decision by the time the legislature starts meeting in January,” Lawrence said.

Additionally, from Rachel La Corte of the AP:

Lawrence said the group is determining whether it can move forward with the existing lawsuit before the state Supreme Court or go back to Superior Court.

"Obviously, this is something that needs to be decided as quickly as possible, ideally before the legislative session starts," he said. "That's something that can be accomplished through either the Supreme Court deciding it or getting an injunction at the trial court level that would stop the enforcement of it."

But if I-1366 maintains its vote lead, and if it withstands court challenges, what happens? As La Corte reports,

"If the courts don't throw it out, this is going to be a real dilemma for us politically," said Democratic Sen. David Frockt, who was one of the plaintiffs in the original lawsuit. "We either have a two-thirds requirement or you blow a huge hole in the budget. I don't know how the Legislature is going to react to that."

Further, another AP story quotes state Rep. Reuven Carlyle:

Carlyle said that while voters' concerns about taxes are a "legitimate and real message," the effect of having the state sales tax cut would have a significant impact on state resources. . . .

The state is currently under a contempt order by the state Supreme Court over education funding, and Carlyle said such a cut is "simply unsustainable."

"If it does indeed pass and the court does not take action it does add a serious level of complexity, no question about it," he said.

The Department of Revenue estimated that if the sales tax is cut under the initiative, state revenues would be reduced by $1.590 billion in the current biennium, and by $3.066 billion in 2017-19.