constitutional-law tax-law
Is a supermajority requirement for raising taxes constitutional?
<p>In a number of US states, in order to enact new taxes or increase taxes, a two-thirds majority vote is required in the legislature or through a ballot proposition.</p>

<p>Some supermajority requirements, like overturning vetoes or amending a constitution, are content-neutral. The tax-increase supermajority requirement is not, since there is no similar requirement for lowering taxes. Since one of the main divisions in US politics is the attitude toward tax-and-spend policies, the supermajority requirement in essence makes a Democratic vote be worth half a Republican vote.</p>

<p>Doesn't that contradict the "one-man, one-vote" principle? Could it be challenged on constitutional grounds?</p>

<p>This is an open question in Colorado, where there's an ongoing challenge to the state's supermajority requirement in <a href="https://www.leagle.com/decision/infdco20170505a91" rel="nofollow noreferrer"><em>Kerr v. Hickenlooper</em></a>. The state requires a supermajority for tax or spending increases, and several lawmakers challenged the law as violating the Guarantee Clause, which guarantees each state a republican form of government.</p>

<p>The case has been going on for a long time. It's about seven years old now, and they're still arguing about who has standing to bring the lawsuit. The latest development is that <a href="https://www.leagle.com/decision/infdco20170505a91" rel="nofollow noreferrer">no one had standing</a>, but that decision is currently being appealed in the Tenth Circuit. </p>

<p>A bigger problem than standing, though, may be justiciability. In <a href="https://caselaw.findlaw.com/or-supreme-court/1485393.html" rel="nofollow noreferrer"><em>Huddleston v. Sawyer</em></a>, the Supreme Court of Oregon, rejected a challenge to supermajority requirements for reducing citizen-approved sentences for crimes, and in <a href="https://law.justia.com/cases/federal/district-courts/FSupp/400/1005/1367220/" rel="nofollow noreferrer"><em>Lefkovits v. State Board of Elections</em></a>, the Northern District of Illinois did the same with respect to judicial retention votes. Both courts concluded that supermajority requirements were a political issue, not a legal one. </p>

<p>The justiciability concerns should be tempered by two considerations. First, there's an argument in Kerr that because taxes and spending are such core legislative functions, that it should be harder to uphold restrictions on the legislature's ability to vote on them. Second, there's U.S. Supreme Court precedent in <a href="https://www.law.cornell.edu/supct/html/91-543.ZO.html" rel="nofollow noreferrer"><em>New York v. U.S.</em></a> suggesting -- but not deciding -- that the questions about justiciability are overblown:</p>

<blockquote>
  <p>The view that the Guarantee Clause implicates only nonjusticiable
  political questions has its origin in <em>Luther v. Borden</em>, in which the
  Court was asked to decide, in the wake of Dorr's Rebellion, which of
  two rival governments was the legitimate government of Rhode Island.
  The Court held that “it rests with Congress,” not the judiciary, “to
  decide what government is the established one in a State.” ... Over
  the following century, this limited holding metamorphosed into the
  sweeping assertion that “[v]iolation of the great guaranty of a
  republican form of government in States cannot be challenged in the
  courts.”</p>
  
  <p>This view has not always been accepted. In a group of cases decided
  before the holding of <em>Luther</em> was elevated into a general rule of
  nonjusticiability, the Court addressed the merits of claims founded on
  the Guarantee Clause without any suggestion that the claims were not
  justiciable. More recently, the Court has suggested that perhaps not
  all claims under the Guarantee Clause present nonjusticiable political
  questions. ... We need not resolve this difficult question today.</p>
</blockquote>

<p>My money says that the question is not authoritatively answered in my lifetime.</p>

<p>I don't think so.  According to the federal Constitution, "The United States shall guarantee to every State in this Union a Republican Form of Government".  For the federal government to intervene, you'd probably have to argue that the state no longer has a republican form of government due to the 2/3 rule.  I don't think a federal court would be willing to go that far.</p>

<p>"One man, one vote" isn't a given in all circumstances anyway.  A 2/3 majority is needed in the US Senate to approve treaties, regardless of whether one party or another is more likely to want to make treaties due to their foreign policy stance.  The people from Wyoming get more US Senators and more electoral votes per capita than the people from California.  And, of course, the President can veto legislation, giving a single person the approximate legislative power of about 16 Senators and 72 House members (the difference between the majority needed to pass, and the 2/3 needed to override a veto.)  Certainly, some deviance from "one man, one vote" is built into the federal systems, so it's not a strict rule, and the federal government would be a little hypocritical to demand it from the states.</p>

<p>The <a href="https://law.justia.com/cases/nevada/supreme-court/2003/41679-4.html" rel="nofollow noreferrer">Nevada Supreme Court</a> in 2003 declared that, in order to fund schools, the 2/3 provision should be ignored during one special session.  This decision was ridiculed by many, and was reversed in 2006.  The lack of federal court involvement in the case (and the reversal) may indicate that this sort of thing is to be sorted out by the state itself, without meddling from the federal courts.</p>
