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Originally published Saturday, September 22, 2012 at 8:05 PM

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It's Tim Eyman vs. the founding fathers

As the state Supreme Court is about to hear arguments on initiative kingpin Tim Eyman's voter-approved law that requires a two-thirds vote in the state House and Senate to boost taxes, rather than a simple majority as with most other laws, a young attorney says his research into Washington's constitution has found "original evidence" that the core principle of Eyman's push is unconstitutional.

Seattle Times staff columnist

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It was more desperation than inspiration, David Perez admits, that had him poring line by line recently through a thousand pages of minutiae about the Washington state constitution.

"I was really struggling," says the Perkins Coie attorney. "I had no argument, nothing. So I went back to the beginning."

What Perez stumbled on, in the middle of a bleary night 12 hours after starting, may mark the close of another chapter in Tim Eyman's ongoing crusade against the state raising taxes.

It's "original evidence," Perez claims, from the days of the state's founding. Proof, he says, that the core principle of initiative kingpin Eyman's work of late has been unconstitutional.

"Glaringly unconstitutional," Perez says.

This Tuesday the state Supreme Court will hear arguments on Eyman's voter-approved law that requires a two-thirds vote in the state House and Senate to boost taxes, rather than a simple majority as with most other laws.

At the heart of the dispute is one line from the state's founding document: "No bill shall become a law unless ... a majority of the members elected to each house" votes for it.

Seems simple enough. But the Eyman side argues that the phrase "unless a majority" is flexible, and that since two-thirds is itself a majority — more than half — then it's OK. The other side argues that when the framers wrote "majority," they meant to fix the plateau to pass a bill at half plus one and keep it there.

The problem has always been that by the time the 75 framers voted on this exact provision, near the end of the convention 123 years ago, it passed without much comment. So no one knows for sure what they meant.

Enter Perez, who is only 27 years old — too young to be told there aren't new ways of looking at old debates. He was tapped to write a pro bono brief on the case for the League of Women Voters.

Stymied and running out of time in late August, he started reading the minutes of the 40-day convention — an account of day after day of amendments on dozens of articles with hundreds of sections, all from the summer of 1889. He was casting about for any clue on what the framers might have been thinking.

He was considering giving up when he noticed that this same phrase — "unless a majority" — pops up in one other spot.

It's in a different section of the constitution, about moving county boundaries. But it turns out it prompted one of the most charged debates of the convention, with insults lobbed between delegates from Tacoma and Seattle and repeated attempts to amend how many votes it should take to change a county line.

"A determined effort to change from a majority to two-thirds or three-fifths met with failure," the Journal of the convention summed up.

The phrase "unless a majority" won. But only after the framers had considered, and rejected, a series of higher vote thresholds, including two-thirds, which some delegates argued was "prohibitory" — that is, too high a bar.

Bottom line: The phrase "unless a majority" obviously didn't mean a flexible standard that could include a two-thirds requirement, à la Eyman, because the framers had rejected that very thing.

"They were very precise about what they meant," Perez says. "And intense. They debated voting limits more than any other issue."

If the find by Perez persuades the state Supreme Court — always a big if — it means the only way to have a two-thirds bar for raising taxes is by amending the constitution itself. That would require, ironically, a two-thirds vote of the Legislature, as well as a majority vote of the people. Eyman could no longer do it by initiative.

Perez's find is fascinating because it has turned the usual political order on its head. The conservatives, who claim to be all about honoring the framers and their intent, are dismissing it as irrelevant while the liberals, who typically insist constitutions are living documents more subject to modern interpretation, have suddenly turned into originalists.

But Perez says he's most shocked that apparently nobody looked before, despite nearly two decades of fighting about the issue.

"It was right there all along," Perez shrugs. "Hiding, but there if you looked."

This story makes me wonder. For all the talk about the founding fathers, maybe we don't really care what they thought.

Danny Westneat's column appears Wednesday and Sunday. Reach him at 206-464-2086 or dwestneat@seattletimes.com.

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