Arizona can’t avoid a supermajority voting requirement just because it wants to

Today we filed an amicus brief in a case challenging Arizona’s Medicaid expansion.  Like California (and many other states), Arizona’s constitution requires that all taxes be passed by a supermajority vote—in this case, 2/3 of the legislature.  The Medicaid expansion included a tax on hospitals in order to pay for the program, but the Arizona Legislature passed the measure using a simple majority vote.  When a group of legislators and taxpayers sued Governor Jan Brewer, arguing that the law violated the constitutional supermajority requirement, the Governor responded first that the court could not hear the case because the Legislature had the sole authority to decide whether a supermajority vote was needed, and second that the legislators could not bring the lawsuit because they had not suffered any injury.  The trial court agreed, and threw out the case.  But the Court of Appeals overruled and held that the plaintiffs could sue to enforce the constitutional supermajority requirement.

In our brief, we urge the Arizona Supreme Court to affirm that holding.  A legislative majority will always have an incentive to argue that a supermajority requirement does not apply.  After all, those limitations are enacted in order to restrict the majority’s power.  To allow the legislature to decide whether it has to comply with supermajority requirements would render those limits meaningless.  We note several cases from California and other states where simple majorities have tried to subvert supermajority requirements.

In those cases, courts have ruled that legislators are the proper party to bring a lawsuit.  When a majority flouts a supermajority requirement, they are effectively denying the other legislators their vote.  This injury is uniquely suffered by legislators, unlike taxpayers or parties subject to the resulting law—who are harmed in other ways.  Who better to vindicate that injury than the legislators themselves, who are both distinctly harmed and have the most familiarity with the facts of the case?

Moreover, there may not be any other party willing or able to bring a lawsuit.  For example, taxes are often dispersed among several persons, meaning that any one individual may not be sufficiently incentivized to bring a lawsuit.  And those who could sue because they are subject to the law—in this case, the hospitals—may not want to bring a lawsuit because they actually benefit from the law overall.  Legislators must have the ability to sue because it’s likely that nobody else can, or will.

We also note the importance of supermajority requirements, which are gaining popularity across the country.  By slowing down the legislative process and commanding a wider consensus, these requirements improve the quality of legislation.  They help impede hasty political decisions made for short-term gain, and help ensure that laws are enacted for the broader good instead of special interest groups.  They also protect the politically powerless, who encounter greater difficulty organizing to protect their own interests.  Courts have to police supermajority requirements closely, not only because the legislature will always be prone to sidestepping them, but because they bolster democratic values.