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Editor’s Note: This is the second of a two-part examination of state constitutions and how certain property is taxed in various states, continued from the September 1, 2022 edition of the Dayton Chronicle.

Of those states that do define property in their constitution, none is as expansive as Washington. Here are further examples:

• Massachusetts (Adopted 1916): “Full power and authority are hereby given and granted to the general court to impose and levy a tax on income in the manner hereinafter provided. Such tax may be at different rates upon income derived from different classes of property, but shall be levied at a uniform rate throughout the commonwealth upon incomes derived from the same class of property. The general court may tax income not derived from property at a lower rate than income derived from property, and may grant reasonable exemptions and abatements. Any class of property the income from which is taxed under the provisions of this article may be exempted from the imposition and levying of proportional and reasonable assessments, rates and taxes as at present authorized by the constitution. This article shall not be construed to limit the power of the general court to impose and levy reasonable duties and excises.”

• Nebraska (Adopted 1966): “When an income tax is adopted by the Legislature, the Legislature may adopt an income tax law based upon the laws of the United States.”

• New Jersey (Adopted 1976): “No tax shall be levied on personal incomes of individuals, estates and trusts of this State unless the entire net receipts therefrom shall be received into the treasury, placed in a perpetual fund designated the Property Tax Relief Fund and be annually appropriated, pursuant to formulas established from time to time by the Legislature, to the several counties, municipalities and school districts of this State exclusively for the purpose of reducing or offsetting property taxes.”

After adding the broadest constitutional definition of property in the country in 1930, Washington voters have since rejected constitutional amendments to change this definition and allow a graduated income tax in 1934 (57% no), 1936 (78% no), 1938 (67% no), 1942 (66% no), 1970 (68% no) and 1973 (77% no). Washington voters have also rejected multiple income tax ballot initiatives in 1944 (70% no), 1975 (67% no), 1982 (66% no) and 2010 (64% no).

Previous attempts by the legislature to circumvent the fact the voters have rejected income tax constitutional amendments have been overturned by the court. In fact, the state supreme court in 1960 reminded income tax advocates that in order to impose a graduated income tax in Washington, the constitution must be amended. From the 1960 state supreme court ruling:

“The argument is again pressed upon us that these cases were wrongly decided. The court is unwilling, however, to recede from the position announced in its repeated decisions. Among other things, the attorney general urges that the result should now be different because the state is confronted with a financial crisis. If so, the constitution may be amended by vote of the people. Such a constitutional amendment was rejected by popular vote in 1934.”

Despite this clear and consistent message from the courts and voters, some income tax advocates now hope to use the capital gains income tax as a way to change the definition of property by judicial fiat and allow the imposition of a graduated income tax without a constitutional amendment. Consider the following 2018 email from Sen. Jamie Pedersen (page 1 of pdf):

“But the more important benefit of passing a capital gains tax is on the legal side, from my perspective. The other side will challenge it as an unconstitutional property tax. This will give the Supreme Court the opportunity to revisit its bad decisions from 1934 and 1951 that income is property and will make it possible, if we succeed, to enact a progressive income tax with a simple majority vote.”

Joining this strategy of ignoring the voters and hoping the courts will now allow a graduated income tax without a constitutional amendment is the Washington Education Association (WEA). The WEA on June 30 filed a legal brief with the state supreme court in the capital gains income tax case asking the justices to change their prior rulings and now declare that income isn’t property (meaning you don’t own it).

The proper way to impose a graduated income tax in Washington is with a constitutional amendment. Claiming an income tax is instead an “excise tax” to set up litigation in hopes the state supreme court will now say that we don’t own our income is disingenuous at best and highly contemptible of voters and the norms of governing.

Washingtonians made it crystal clear in 1930 that property “shall mean and include everything, whether tangible or intangible, subject to ownership.” Voters have since rejected six constitutional amendments to change that definition. It is past time for income tax advocates to play by the rules the sovereigns of the state have imposed and for the state supreme court to reject yet again an attempt to circumvent the will of the people clearly expressed in the constitution and at the ballot box.

-Mercier is Director for the Center for Government Reform, Washington Policy Center.