Income tax fight looms as Supreme Court primary voting begins July 17

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(The Center Square) - Voters are preparing for what could likely be the most consequential election in the history of the Washington Supreme Court ahead of a crowded primary with ballot boxes opening July 17.

Five of the nine seats on the Washington Supreme Court are up for election this year, ahead of a case challenging the state’s new income tax anticipated to reach the bench. Four of those races will appear on the Aug. 4 ballot, but only the top two candidates from each will advance to the general election.

Position 4 is the only race that will not appear on the primary ballot, since only two candidates filed to run: state Court of Appeals Division I Judge Ian Birk and King County Superior Court Judge Sean O'Donnell.

“There have never been this many spots [on the ballot] in living memory all at once. You could change the composition of the court, so it really matters,” Mike Diaz, a state Court of Appeals Division I judge seeking an open seat for Position 3 along with two other challengers, told The Center Square in a recent interview.

Outside groups focus on court’s direction

Supreme Court elections are usually low-information, voter-turnout affairs, so The Center Square has published Q&A articles with every candidate on the primary ballot who agreed to be interviewed. This cycle is also drawing significant attention from commentators and nonprofits on both sides of the aisle.

Full Court Press and the Northwest Progressive Institute, two nonprofits highlighting this year’s judicial elections, have both launched websites to track the races. Full Court Press says its mission is to “bring balance” to the left-leaning judiciary, while NPI calls itself a “strategy center” for progressive interests.​

They both gave their trackers similar names: wasupremecourt.org and washingtonsupremecourt.org.​

Jackson Maynard from the Citizen Action Defense Fund and Rob McKenna, a former Republican state attorney general, are two of the people behind Full Court Press and are also fighting the income tax in court. Meanwhile, NPI is part of a coalition opposing a ballot initiative seeking to repeal the income tax.

“It comes down to whether or not we want the court to stay in the current direction, or whether voters want more diverse philosophies,” Full Court Press Executive Director Tim Kovis told The Center Square.

Kovis said Full Court Press isn’t out to elect judges to undo the laws the nonprofit doesn’t like; they train judicial candidates to look at the facts of a case and then rule based on the law, not on a set outcome. 

Several candidates have questioned the independence of the state judiciary, as the income tax lawsuit moves through the courts, given that six of the nine justices were appointed by Democratic governors.

Gov. Bob Ferguson recently appointed two new justices who had never been judges before, one about a month before publicly supporting the income tax and the other just weeks before signing it into law.

Many candidates highlight support from the Democratic establishment and legislators behind the tax. A handful of the challengers have also been "recommended" by the Washington State Republican Party. 

“The court has been a status quo for the majority party. Do we want to continue to go in that direction or have an independent judiciary that's going to look at these issues in a nonpartisan way?” Kovis said.

Nearly 100 years of Washington Supreme Court precedent essentially bars progressive income taxes, and voters have rejected income taxes on the ballot 10 times since then. The 1933 ruling recognizes income as property under the state Constitution’s uniformity clause, which taxes property at a flat rate.

NPI Executive Director Andrew Villeneuve previously referred to the 1933 ruling at issue as “shoddy” in an April interview with The Center Square. Emails uncovered by The Center Square show that Democrat lawmakers planned to use the new income tax to “force” the high court to reconsider that precedent.

Villeneuve argued that subsequent U.S. Supreme Court rulings have weakened the foundation of the 1933 Culliton decision. He said the state Constitution doesn’t explicitly prohibit income taxes and that the ruling treats income as property, suggesting it was “justiciable” to reconsider the longtime precedent.​

“Culliton again is based on such a shoddy foundation that is just begging to be overturned,” Villeneuve told The Center Square during an interview in April. “The reason it hasn't been is because no one has done anything that would allow the court to revisit the issue; courts don't decide hypotheticals.”

Candidates debate judicial independence

Many voters are looking at this year’s Supreme Court elections through the lens of the income tax.

However, judicial rules largely prohibit candidates from speaking about cases before the court or those that could come up later. Several candidates have cited that when asked about the income tax by The Center Square, but not everyone held back when asked whether Washington has a partisan judiciary.​

Justices Colleen Melody and Theo Angelis argued that their relationships with the governor and figures tied to the income tax won’t compromise their integrity. Melody said the claim of a partisan judiciary is rooted in an observation that Democrats have held the governor’s office for more than four decades.

“You’re not really being a judicial officer if that weighs on your decision-making,” Angelis said in June.​

Those running against the appointees for Positions 1 and 5, such as Laura Christensen Colberg, a family law attorney and Snohomish County pro tem commissioner, have suggested that Ferguson stacked the court ahead of a potential income tax challenge. Colberg wants voters to consider who they can trust.​

Dave Larson, a former Federal Way Municipal Court judge up against Angelis and two other candidates for Position 5, says the judiciary is supposed to be a “lighthouse” but has become a “ship lost at sea.”​

“If you had a case before the Supreme Court, would you feel confident you're going to get a decision that's based on the law and the Constitution, or do you think there's going to be some kind of political or personal agenda that's going to dictate the outcome?” Larson told The Center Square last month.