King County Superior Court Judge Dean Lum has declined to block Initiative 1366 from the fall statewide ballot.

Opponents of Tim Eyman’s anti-tax measure had tried to derail it from appearing on the ballot, asserting that it has an overarching purpose of amending the state constitutional, which cannot be done by initiative. Eyman’s plan would lower the state sales tax by one percentage point, from 6.5 to 5.5, unless lawmakers place a proposed constitutional amendment on the 2016 ballot to require two-thirds supermajority for taxes passed in Olympia.

The judge said amending the constitution is sponsors’ “fundamental, stated and overriding purpose,” and thus exceeds the authority of citizens’ initiative power.  But he also declined to keep the measure off the ballot, saying the state Supreme Court “has not clearly and squarely ruled on whether the First Amendment to the United States Constitution and/or … the State Constitution provide additional protections against pre-election challenges even in circumstances where the initiative may itself be invalid. The Supreme Court may clarify this issue prior to the election, but this trial court cannot.”

The First Amendment reference is to whether initiatives have an element of protected political speech, even if they are later invalidated.

Secretary of State Kim Wyman, the state’s chief elections officer, was sued by the challengers who wanted her to pull the measure off the ballot. Wyman noted that no initiative has ever been removed from the ballot by the courts once the measure has been given a ballot title by the Attorney General, collected sufficient voters signatures and been certified by the Secretary to the ballot.

The Secretary said:

 “We are happy with Judge Lum’s decision that allows Initiative 1366 to maintain its place on the ballot. This is an important victory for the voters of Washington and for `direct democracy.’ We hope that it will stand as the Supreme Court considers an appeal motion that was quickly filed by the challengers.

“We take no position on this particular initiative or its eventual constitutionality, but we are pleased that the judge has not blocked a vote. We continue to believe that I-1366 does not exceed the initiative powers of the people and that the 339,000 voters who proposed the measure and other voters on both sides of the initiative deserve a voice at the ballot box.

“We will continue to affirm the constitutional right of citizens to propose and vote on initiatives and express their views. It has been a cherished right reserved by the people for over 100 years.”

The judge’s order: http://1.usa.gov/1HMiGp2