Tomorrow, the Washington State Supreme Court is expected to release its decision in Garfield County Transportation Authority, et al. v. State of WA, et al., the legal challenge to Tim Eyman’s Initiative 976.

I-976, which appeared on the statewide ballot one year ago, is a measure sponsored by failed gubernatorial candidate Tim Eyman that sought to inflict catastrophic damage on multimodal transportation investments in Washington by wiping out their funding.

Most Washingtonians did not return a ballot in the 2019 general election and thus never weighed in on I-976, but the measure passed anyway due to receiving more yes votes than no votes. However, it did not go into effect due to being promptly challenged in court.

Courts at both the trial and appellate level agreed to put I-976 on ice at the request of the plaintiffs contending that the measure is unconstitutional. Tomorrow’s decision will bring I-976 out of limbo one way or another: either the measure will be struck down, meaning it won’t ever be enforced, or it will go into effect and immediately cause catastrophic harm to Washington State’s communities at a time when underfunded essential public services are already reeling from the coronavirus pandemic.

If you plan to cover the ruling and its aftermath, please do right by your audience and discuss the ramifications from a community standpoint, not just an individual taxpayer’s standpoint. As a state, we rise and fall together; we pool our resources to get things done. No individual taxpayer, with the possible exception of the ultrawealthy like Bill Gates or Jeff Bezos, possesses the resources needed to undertake a project like rebuilding the West Seattle Bridge. But together, a project like that is something we can achieve.

Vehicle fees (car tabs) are one of the core ways we pay for roads, bridges, ferries, mass transit services like buses, trains, and paratransit, sidewalks, bike lanes, traffic safety, and law enforcement.

If vehicle fees in Washington end up getting gutted by I-976, as Tim Eyman intended, the consequences will be dire and far reaching. We will all lose if that scenario comes to pass…. even Washingtonians who voted for I-976 and feel vehicle fees are currently too onerous.

On the other hand, if I-976 is struck down, an important revenue source that is not as volatile as the sales tax will remain in place at a crucial time, keeping funding flowing to services like the Washington State Patrol, Washington State Ferries, Amtrak Cascades, and city road repair funds. This would be a just and fair outcome, particularly since voters were lied to by I-976 sponsor Tim Eyman and the I-976 ballot title (the language that appeared on the ballot as a representation of the measure) with respect to what the measure would do.

Below is a primer on the case.

The initiative

Initiative 976 was on the ballot in November of 2019.

It received 1,055,749 yes votes (23.44% of 4,503,871 registered voters at the time the election was certified) and 936,751 no votes (20.80% of 4,503,871 registered voters at the time the election was certified).

Information about the measure’s qualification to the ballot, the arguments for and against, and fiscal impact statement are available from our I-976 overview page. The measure’s text, in PDF, is also linked from that page.

The ballot title (what voters saw on their ballots) was as follows:

Initiative Measure No. 976 concerns motor vehicle taxes and fees.

This measure would repeal, reduce, or remove authority to impose certain vehicle taxes and fees; limit annual motor-vehicle-license fees to $30, except voter-approved charges; and base vehicle taxes on Kelley Blue Book value.

Should this measure be enacted into law? Yes [ ] No [ ]

A substantive discussion of the defects in the ballot title is available from NPI’s Cascadia Advocate.

This discussion, which memorably referred to the I-976 ballot title as a “blazing dumpster fire” was cited by King County’s David Hackett, one of the lawyers for the plaintiffs, during oral argument before the Supreme Court.

The content of an initiative’s ballot title is very important. Because it is the only representation of an initiative that voters see on their ballots, it needs to be concise and truthful. The Constitution (Article II, Section 19) requires that bill and ballot titles expressly refer to their subjects. The same provision of the Constitution also limits bills and initiatives to a single subject to prohibit the practice of logrolling, which has a long history of use in the United States, and is legal at the federal level.

The lawsuit

The parties in the case (Garfield County Transportation Authority, et al. v. State of WA, et al.) are as follows:

GARFIELD COUNTY TRANSPORTATION AUTHORITY; KING COUNTY; CITY OF SEATTLE; WASHINGTON STATE TRANSIT ASSOCIATION; ASSOCIATION  OF WASHINGTON CITIES; PORT OF SEATTLE; INTERCITY TRANSIT; AMALGAMATED TRANSIT UNION LEGISLATIVE COUNCIL OF WASHINGTON; and MICHAEL ROGERS,

Plaintiffs,

and

WASHINGTON ADAPT,

Intervenor-Plaintiff,

v.

STATE OF WASHINGTON,

Defendant,

and

CLINT DIDIER; PERMANENT OFFENSE, TIMOTHY D. EYMAN, MICHAEL FAGAN; JACK FAGAN; and PIERCE COUNTY,

Intervenor-Defendants.

The original complaint filed by the plaintiffs is available from NPI’s Cascadia Advocate.

The briefs submitted to the Supreme Court may be downloaded from courts.wa.gov:

• Amicus – Puyallup Tribe of Indians
• State’s Answer to Amicus
• Amicus – San Juan County
• Amicus – the League of Women Voters of Washington
• Amicus International Municipal Lawyers
• Appellants Reply Brief
• Appellants-Cross Respondents Brief
• Corrected Resp-Appellant Brief
• Intervenor-Plaintiff’s Brief
• Intervenor-Plaintiff’s Reply Brief
• Respondent Intervenor Brief
• Respondents Reply on Cross Appeal
• Respondents-Appellant Reply Brief
• Respondents-Appellants Brief

The oral argument can be watched on TVW. It was conducted remotely due to the coronavirus pandemic.

The alleged constitutional defects

The plaintiffs in Garfield County have alleged that I-976 violates the Constitution in nearly a dozen different ways.

Here are the alleged defects, as identified by the plaintiffs:

1. Does I-976 violate article II, section 19 single subject requirements because it combines multiple subjects that are not germane to each other?
2.  Does I-976 violate article II, section 19 subject in title requirements because its ballot title affirmatively misrepresents what the measure “would do” and does not include necessary subjects?
3. Does I-976 violate article II, section 37 by amending existing statutes without setting the amendments forth in full, thereby resulting in confusion as to the effect of the new law?
4. May unconstitutional provisions of an initiative be severed from the measure when they were included in the ballot title?
5. Does I-976 violate article XI, section 12 by depriving municipal governments of vested local taxing authority for local purposes prior to expiration of the local tax?
6. Does I-976 violate Washington’s separation of powers doctrine through legislative intrusion on the executive function of administering bond repayment?
7. Does I-976 violate article VII, section 5 by diverting tax dollars from the purposes approved by local voters?

The plaintiffs must prove beyond a reasonable doubt that I-976 contains one or more constitutional defects to prevail in their case.

King County Superior Court Judge Marshall Ferguson was persuaded that some provisions of I-976 (but not all) were unconstitutional; accordingly, he severed and struck down some of I-976’s clauses.

However, because his ruling was appealed to the Supreme Court, and because the injunction he had previously issued keeping I-976 frozen was kept in place, his ruling did not change anything.

The Supreme Court will have the final word on I-976’s constitutionality, or lack thereof. Judge Ferguson’s prior ruling on I-976 is not binding on the Supreme Court. As we have seen, the Court has no qualms about overturning decisions reached by the state’s trial court judges, especially when it comes to the use of the instruments of direct democracy (the initiative, referendum, and recall).

For example, just this week, the Court nixed a recall against Seattle Mayor Jenny Durkan.

Two years ago, the Court voided a ruling keeping the Alliance for Gun Responsibility’s I-1639 off the ballot.

And a few years before that, the Court said that I-1240 (charter schools) was unconstitutional after a trial court had left it largely intact.

The ramifications

If I-976 is implemented, decades of bipartisan and often voter approved work to improve Washington State’s transportation system will be undone, and many essential public services will be gutted, unless replacement funding can be obtained.

You can use our NO on I-976 Impact Map (PDF) to visualize how the state could be negatively affected by a ruling implementing I-976.

The NO on I-976 website, built and hosted by NPI, remains available as well.

There, you can find fact sheets as well as a list of cities that use vehicle fees to fund local road maintenance and street improvements.

Research suggests voters are strongly opposed to cuts to transportation investments. An Elway poll from early 2020 found a robust majority in support of finding replacement funding to avert cuts due to implementation of I-976.

January 2020 Crosscut/Elway Poll

405 registered voters; margin of error +/-5% at the 95 confidence level; survey conducted December 26th-29th, 2019, with 29% of voters in King County, 50% elsewhere in Western Washington, 20% in Eastern Washington

QUESTION #9: As you probably know, voters recently approved Initiative 976 to cut car-tab fees, effectively reducing revenue for transportation and transit projects. In your opinion, should the Legislature now delay and cut projects to make up the lost revenue, or try to find a new way of raising money for transportation?

• DELAY & CUT: 26%
• FIND NEW REVENUE: 58%
• NO OPINION: 16%

That’s more than a two-to-one margin in favor of new revenue.

Note that te I-976 ballot title said absolutely nothing about any cuts to projects. It only asked about cheap car tabs, and it made it sound like there would be no negative consequences to making car tabs cheap. Elway’s polling reinforces that people were not voting for cuts.

What about Sound Transit and the ST3 projects?

Sound Transit has said it believes that it will not be impacted by I-976 regardless of whether the Supreme Court finds I-976 constitutional or not. The agency is thus not a party in the legal challenge against I-976.

If Sound Transit is correct, tomorrow’s ruling won’t sabotage the work of expanding Link, Sounder, ST Express, and creating Stride bus rapid transit, even though other projects and services would suffer devastating financial losses.

Tim Eyman naturally disputes the agency’s interpretation of his initiative. However, Tim is not a lawyer, and it is well established that he does not understand the basics of drafting laws that can withstand legal and constitutional scrutiny.