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You know that “simple” majority for tax increases the Washington Supreme Court upheld last week? It’s not all that simple

Post by Peter Callaghan / The News Tribune on March 7, 2013 at 9:51 am with No Comments »
March 7, 2013 11:55 am

In trying to clarify the intent of the Washington State Constitution regarding the number of votes needed to pass laws, including tax-increases, the members of the state Supreme Court might have misused one of the key phrases in both the decision and one of the dissents.

That is, is a simple majority REALLY what the constitution requires to pass such bills? And was the use of that phrase accurate, especially in that it was used to describe two very different vote requirements – i.e. a majority of those elected to each house AND a majority of those present when a vote is taken.

In Justice Susan Owens‘ majority opinion, she wrote:

“We conclude that the Supermajority Requirement’s constitutionality is justiciable because the requirement has nullified the legislator respondents’ votes by preventing the passage of tax legislation that received a simple majority vote.”

Justice Susan Owens
Justice Susan Owens

And this:

“In other words, if a bill has become law, then it must have been supported by a simple majority vote.”

And this:

“Under a commonsense understanding, any bill receiving a simple majority vote will become law.”

Even Justice James Johnson engaged in the same interpretation in his dissent:

“The majority is correct, a simple majority is necessary for the passage of a bill. However, the majority is wrong when it contends that just because a simple majority is necessary, it is also always sufficient.”

Justice James Johnson (TNT files)
Justice James Johnson (TNT files)

Actually, that’s not really the case. The state constitution says no bill shall become law unless a “majority of the members elected to each house be recorded thereon as voting in its favor.”

That, according to dictionaries does not describe a simple majority. Instead, that is called an absolute majority.

Here’s the difference: A simple majority is a majority of those voting. An absolute majority is a majority of those eligible to vote.

Somehow the phrase “simple majority” has flooded the discussion of the issues raised in LEV v. State. Owens even uses it to describe two very different requirements – both when a majority of those elected is needed and also when a majority of those present is needed as when the Senate could have overruled a ruling of the president of the Senate.

“In that case (Brown v. Owen) we recognized that, under the Senate rules, the decision could have been overruled by a simple majority vote.” This, ironically, is the correct usage of the term as parliamentary rulings and interpretations of Senate rules can be overturned by a majority of those present.

I have misused it myself many times, something that drew a gentle scolding from Kristen Fraser, a legislative staff attorney who also teaches the Washington State Constitution at Seattle University School of Law and who wrote a Gonzaga Law Review article on constitutional provisions for passing legislation that was cited in Owens’ opinion.

“This may be too fine a distinction for your readers, but technically there is a difference between a simple majority and the constitutional majority required by Art. II, sec. 22,” Fraser wrote. “If quorum is present to do business … a simple majority is half-plus-one of all votes cast. A simple majority may, for example, adopt amendments, but passage of a bill requires affirmative votes of half the members elected.”

So, lets say the Senate has 49 members and 30 have shown up to work that day. That is enough to ensure a quorum for action because it is more than half of 49. And lots of decisions can be made – passage of motions, referral of bills, even adoption of amendments to bills – with votes that consist of a majority of those present. A vote of 16-14 in this case is a simple majority.

But should the body try to pass a bill, it could not pass into law unless it attracted 25 votes – say by a vote of 25-5. A bill on final passage that carried a simple majority of 20-10 would be deemed to NOT have passed because while it had a simple majority it lacked an absolute majority or, now with the clarity provided in LEV v. State, a “constitutional majority.”

As the opinions in LEV make clear, the drafters of the state constitution back in 1889 knew well the difference between simple and absolute. From the minutes of the convention, delegate James Power “moved to insert a provision that a majority of those present could pass a bill. Action: Motion lost.”

Instead the language that still appears was adopted, requiring majorities of those elected to each house.

When it comes to legal interpretations, I always prefer a second opinion – especially when it comes pro bono. So I asked Seattle attorney Hugh Spitzer who teaches state constitutional law at the University of Washington law school and who co-authored with former Justice Robert Utter “The Washington State Constitution A Reference Guide.” He agreed with Fraser.

“I thought some more about this and poked around a bit. “Simple majority” does frequently connote a majority of those present and voting (assuming a quorum is present). The term “absolute majority” isn’t used very much, but when it is used it does indeed connote votes a majority of the persons eligible to vote.

“To the extent that (Owens) used the term ‘simple majority,’ she probably was inaccurate, in that Article II, Section 22 provides that enactment of a bill requires ‘a majority of the members elected to each house…voting in its favor.’ But despite her inexact use of the word, I don’t think she meant to, or did, change the constitution. It still takes an absolute majority of each house to pass a bill.”

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