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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.

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.

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

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  • How does a supermajority threshold "contradict the 'one-man, one-vote' principle"?
    – phoog
    Apr 17 '18 at 14:13
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This is an open question in Colorado, where there's an ongoing challenge to the state's supermajority requirement in Kerr v. Hickenlooper. 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.

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 no one had standing, but that decision is currently being appealed in the Tenth Circuit.

A bigger problem than standing, though, may be justiciability. In Huddleston v. Sawyer, the Supreme Court of Oregon, rejected a challenge to supermajority requirements for reducing citizen-approved sentences for crimes, and in Lefkovits v. State Board of Elections, 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.

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 New York v. U.S. suggesting -- but not deciding -- that the questions about justiciability are overblown:

The view that the Guarantee Clause implicates only nonjusticiable political questions has its origin in Luther v. Borden, 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.”

This view has not always been accepted. In a group of cases decided before the holding of Luther 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.

My money says that the question is not authoritatively answered in my lifetime.

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    Thanks very much, that's all that I expected and more. Apr 18 '18 at 7:27
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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.

"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.

The Nevada Supreme Court 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.

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  • What about state constitutions? I know that they are all different, but most are based on the same foundations. Apr 17 '18 at 18:33
  • The case of treaties which you mention is the most germane, but it's not a perfect analogy. Treaties are relatively permanent, and rarely broken. You could make the case in the same way that a 2/3 vote would be needed to break a treaty, though that's never been tested. In contrast, taxes are regularly increased or cut. Apr 17 '18 at 18:48
  • @user3101366 Since the 2/3 provisions are often in the state constitutions, it's rather difficult for them to simultaneously violate the state's constitution. Is there a particular provision in state constitutions that you think might be relevant?
    – D M
    Apr 17 '18 at 19:22
  • @user3101366 There's nothing saying a 2/3 vote is needed to break a treaty (and I've never heard of such a vote even being attempted.) Breaking treaties really isn't contemplated by the Constitution, yet we've certainly done it. (You could, of course, replace a treaty with a new treaty, which would require 2/3, but that requires the consent of the other country.) And yes, the analogy isn't perfect. The only perfect analogy would be if 2/3 was required to raise federal taxes, and that obviously isn't the case. (We did need 2/3 to pass the 16th amendment allowing federal income tax, of course.)
    – D M
    Apr 17 '18 at 19:35

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