Jason Mercier: The rule of law takes a hit in Washington state with unconstitutional income tax vote

By Jason Mercier

It takes 33 votes to advance a constitutional amendment in the Washington state Senate. In a universe where the Washington Legislature cared about the rule of law and honoring state supreme court precedent, the income tax vote on Senate Bill 6346 would have failed by six votes (it received 27 “yes” votes).

Six prior times in the state’s history, the Washington Legislature understood that to follow the rule of law and comply with numerous state Supreme Court rulings, a constitutional amendment was required to impose a nonuniform income tax in excess of 1%. This is due to the state Constitution’s protections for taxes on property.

As noted by former state Supreme Court Chief Justice Gerry Alexander, former justice Phil Talmadge, and former state Attorney General Rob McKenna in their joint legal brief concerning Seattle’s failed attempt to impose an income tax: “Our Supreme Court has held unequivocally that income is ‘intangible property.’ ”

Though overwhelmingly rejected by voters, income tax constitutional amendments were put on the ballot in 1934, 1936, 1938, 1942, 1970 and 1973. Along with rejecting these constitutional amendments, voters have also turned down four other income tax ballot measures in 1944, 1975, 1982 and 2010 (10 total income tax proposals have been rejected by voters).

Here is what voters were asked to do with the prior rejected constitutional amendments:

1934: “A resolution amending section 1 of Article VII of the constitution by providing that all taxes shall be uniform upon the same class of subjects within the territorial limits … and providing that nothing contained in this section shall be construed to prevent the enactment of a graduated net income tax law.” (57% “no” vote)

1936: “A Proposal to repeal section 12, article XI and amend sections 1 and 9, article VII of the constitution by providing: uniform taxation upon the same class of subjects; that the legislature may provide exemptions and graduated net income tax …” (78% “no” vote)

1938: “A Proposal to amend Section 1, Article VII of the Constitution of the State of Washington relating to taxation by providing that nothing contained in said section shall be construed to prevent the enactment of a graduated net income tax law.” (67% no vote)

1942: “A Proposal to amend Article VII of the Constitution by adding a new section, section 2, providing that income shall not be construed as property for the purpose of taxation, and empowering the legislature to enact graduated net income taxes, and to provide exemptions, offsets and deductions.” (66% no vote)

1970: “Shall the state constitution be amended to … permit the legislature to tax income at a single rate without regard to this limitation or, after 1975, at a graduated rate if the voters in that year or thereafter approve the removal of the single rate limitation?” (68% no vote)

1973: “Shall a graduated net income tax be authorized, excess levies for school operations be prohibited, and some excise taxes limited?” (77% no vote)

Why didn’t these prior Legislatures do what the 2026 Senate just did and simply pass an income tax without a constitutional amendment? As the state Supreme Court noted in 1960, an income tax must be decided with a constitutional amendment: “The argument is again pressed upon us that these cases were wrongly decided. The court is unwilling, however, to recede from the position announced in its repeated decisions. Among other things, the attorney general urges that the result should now be different because the state is confronted with a financial crisis. If so, the constitution may be amended by vote of the people. Such a constitutional amendment was rejected by popular vote in 1934.”

There are many court rulings we all disagree with. But once a supreme court has spoken on constitutional issues, the correct way to address a change is with a constitutional amendment. Lawmakers willfully defying a ruling they don’t like in hopes that different judges will change a century of legal precedents, against the backdrop of voters consistently rejecting income tax constitutional amendments, is a recipe for constitutional chaos.

We’ll soon know if the Washington House and governor (a former state Attorney General) care about following the rule of law or will instead follow the Senate’s bad example.

Jason Mercier, of Kennewick, is vice president and director of research of Mountain States Policy Center, an independent research organization based in Idaho, Montana, Eastern Washington and Wyoming. Online at mountainstatespolicy.org.