In September, the state Supreme Court allowed Initiative 1366 to be on the ballot (it's currently leading 51.79 percent to 48.21 percent). Today the Court released its reasoning. It argues that, because of the two stated options in the initiative (sales tax cut or two-thirds majority constitutional amendment), the true purpose of the initiative is unclear.

A King County Superior Court judge had previously ruled that "the fundamental, stated and overriding purpose of I-1366 is to amend the Constitution," and so it is therefore unconstitutional. But he also ruled that plaintiffs did not establish a clear right to injunctive relief, so it could appear on the ballot.

Although the Supreme Court's opinion does not give "any opinion on the general constitutionality of I-1366," the Court held

 . . . that appellants did not make a clear showing that the subject matter of the initiative is not within the broad scope of the people's power of direct legislation . . . .

The opinion notes,

The parties' arguments demonstrate that "the fundamental and overriding purpose" of I-1366 depends on the prism through which one views its provisions.

If you think the initiative's purpose is to amend the constitution, you probably think that

. . . the threat of a $1.4 billion-a-year tax cut is obviously intended to bring pressure on the legislature to exercise its power to propose a constitutional amendment in violation of articles II and XXIII.

But if you think it is just conditional legislation, "the purpose of I-1366 is the enactment of law and not the amendment of the constitution." So,

In the present context of subject matter preelection review, the fundamental and overriding purpose is not sufficiently clear. Had each claimed purpose been the sole and explicit purpose of I-1366, the outcome would be obvious. If the initiative called only for a reduction in the sales tax, there would be no preelection issues. If it called only for a two-thirds constitutional amendment, it would clearly be outside the scope of the people's initiative power.

Because of this lack of clarity about the initiative's purpose, the Court did not prevent it from going to the voters. However, "Our decision today does not hold that I-1366 is necessarily within the scope of the people's initiative power."

As I wrote last week, now that the initiative has been approved by voters, it will be challenged again. In PubliCola, Josh Kelety writes that state Sen. Jamie Pedersen

says that the next legal challenge will likely come in three different arguments. One is that I-1366 violates the “single-subject rule.” Washington law requires that bills and initiatives affect strictly one unified subject; Pedersen says the unruly I-1366 mixes a tax decrease with a constitutional amendment. The second challenge, Pedersen says, would be a procedural argument that amendments can’t be approved by initiative. And the third, Democrats maintain, I-1366 gets in the way of the legislature fulfilling the court mandate in McCleary that the legislature fully fund education; that be [sic] pretty difficult with a $10 billion shortfall over the next 10 years.

And, on timing:

Pedersen thinks the courts likely won’t hear any challenge to I-1366 until January or February of next year, a timeline which could potentially complicate next year’s spring legislative session if lawmakers have to assume that $1.4 billion dollars in revenue is missing. Democrat Carlyle said the Washington State Economic and Revenue Forecast Council—a body which informs the legislature on the state’s economic activity and projected tax revenue—will have to decide whether or not to include the $1.4 billion cut in their February 2016 forecast if the courts take no action by February.

See also our policy brief on I-1366, in which we wrote about the lack of clarity over how it would play out.