Solicitor General Maureen Hart argues the state’s position during the Supreme Court hearing Sept. 25.

We’ve been so busy this election season that we just haven’t had time to plow through the newspapers that have been stacking up in the kitchen, but at least Washington State Wire can report that it has managed to finish reading the Seattle Times of Aug. 9, 1889.

There’s been quite a debate about what the Times said that day and what it didn’t say, and what it all means. But let’s just say this. Many observers, including our friends at Seattle’s Publicola website, have been a bit too quick to dismiss Justice James Johnson and the argument he made at a key hearing last Sept. 25. Its so-called “fact-check” piece basically accused him of making something up out of whole cloth — an argument we’ve been seeing in other venues as well. But no, the story is right there on the front page. It’s just a bit more complicated than it sounded, even to us. You have to read between the lines.

What exactly the Times said 123 years ago is important because it figures into the current debate over the state’s two-thirds for taxes rule, now under challenge in the state Supreme Court. Twelve House Democrats, the League of Education Voters and a host of special interests are challenging the rule, passed by voters four times now and probably a fifth come November, requiring  a two-thirds vote of the House and Senate before taxes can be increased. The basic idea is that if the rule can be declared unconstitutional, then it will be much easier to raise taxes and pay for the programs they want funded.

It all hinges on a convoluted line in the state constitution, which establishes the way most bills are supposed to pass in the Legislature. Article 2, section 22 reads: “No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor.”

Clear as mud.

So what exactly does that tell us? Is a majority vote  supposed be all it takes to pass a bill? Or is that just a minimum? Or were the framers actually trying to say something else?

The Seattle Times of Aug. 9, 1889.

Official Record is Sketchy

The problem is that the official journal of the state constitutional convention is pretty darn sketchy. When it comes to article 2, section 22, it recounts the motions that were made during the debate that took place that morning. It doesn’t say anything about the arguments. Maybe the secretary of the convention was getting a little tired — the convention had been going on a full month at this point. But this creates a bit of a problem today. We don’t have a verbatim record because no one in 1889 thought to whip out a tape recorder, and the TV stations of 123 years ago unfortunately were not providing gavel to gavel coverage as TVW does today. The challengers have been digging into the journal, raising arguments based on other debates that took place during the convention, sort of squinting a little and trying to divine what the framers surely must have meant, even if they didn’t bother writing it down, so on and so forth. And the whole thing seems a little chilling, when you consider that one of the momentous decisions in the history of the court might be based on pure guesswork.

When the case came before the Supreme Court last month, Justice James Johnson said the Seattle Times of Aug. 9, 1889 basically blows that line of argument out of the water. All the framers wanted to do was to establish a quorum requirement, he said. And of course that was a big deal in those days. We all know that the roads were awful, horse-and-buggy travel took forever, and you could never be sure if the trains would run on time. So on the opening day of a legislative session, it was doubtful that everyone would be present. The question, then, was whether it took a majority of those present to pass a bill, or a majority of those who were elected. And in the interest of fairness to the entire state, the founding dads decided that it took a majority of everyone elected. If you look at it in that context, suddenly the meaning of that convoluted phrase becomes clear. And thus you can conclude that the authors of the constitution never intended to establish that a simple majority is a maximum requirement.

Johnson put the story in the form of a question, as justices must do during the course of a hearing. If the framers really wanted to establish a maximum voting requirement, “tell me why they didn’t use this simple way of saying it.”

And the attorney representing the challengers did his best to duck the question.

What the Times Said

The key passage appears in the article’s second column. (Click on illustration for a better view.)

Ever since that hearing took place, those of us who aren’t afraid to use microfilm machines have been going to the library to figure out what on earth Johnson was talking about. If you look at the Seattle Times for that day, you don’t find a story that lays it out clearly. Its account appears a simple wrapup of the motions that were made. Which might explain why people are so confused.

Washington State Wire actually spent a lunchtime or two in the State Library trying to look this one up, and learned mainly how easy it is to get sidetracked by stories about how Seattle, Spokane, Ellensburg and Pendleton all burned to the ground that summer, and about a fellow in London’s Whitechapel district who was doing ghastly things with a knife.

But now we’ve finally found the answer. It was right there in front of us the whole time. It just takes a rather careful and critical reading. The brief submitted by Maureen Hart, the state solicitor general, who represented the state in its defense of the two-thirds rule, explains how it all fits together. The Seattle Times story basically fleshes out the official record, offering a detail that doesn’t appear in the journal. And when you put it all together, it becomes crystal clear that the convention-goers were debating quorum requirements, not a maximum requirement for votes in the Legislature.

It goes like this. The official journal reports:

Motion:  Turner moved that the words “majority vote” be stricken.

Action: Motion lost.

Motion:  Power moved to insert a provision that a majority of those present could pass a bill.

Action: Motion lost.

Now here’s the key detail that is added by the Seattle Times. It offers a bit of elaboration about the motion made by delegate Turner – and the italics below are ours:

“Turner moved to strike out the provision that a majority vote of the members elected be necessary to pass a bill.

“The motion was lost and the section passed.”

You can find a similar description of the motion in the Tacoma Ledger. So the Times wasn’t making it up. The whole thing really is clear as a bell. The debate was about quorum requirements. Case closed.

When you consider the fuss that the challengers have been making about the intent of the framers, the argument on this point becomes a bit amusing. Attorney Paul Lawrence never did answer Johnson’s question. Instead he said it wasn’t important. He said the important legal question is whether the voters of the state can impose a requirement that goes above and beyond the constitution, without amending the constitution itself.

In other words, if the historical record supports your position, then it is an absolutely critical argument. And if it doesn’t, you better ignore it and argue something else.

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