Three main takeaways:
- There's a lawful way to change Washington's constitution. Legislators didn't use it.
- Legislators and the AG's office made sure voters couldn’t refer the income tax bill to the ballot.
- The Solicitor General recommended to Legislators that they "dress up" the income tax bill to sway the Supreme Court, turning the intent section of the income tax bill into what amounts to a political brief aimed at the justices who will eventually rule on the bill's constitutionality.
Every few decades, Olympia lawmakers convince themselves they have finally figured out how to impose an income tax in Washington state. And every few decades, voters see through it. In fact, voters have rejected an income tax at the ballot 11 times in the past century. Six of those eleven losses came on constitutional amendments lawmakers themselves put on the ballot, each one designed to work around Culliton v. Chase, the 1933 Washington Supreme Court decision that treats income as property and blocks a graduated income tax.
This year, the legislature decided to stop asking voters. Emails obtained by The Center Square through a public records request revealed that Senator Jamie Pedersen and the Attorney General's office developed a legal strategy designed to accomplish two things: get the state Supreme Court to overturn Culliton, and make sure the public could never refer the statute to the ballot.
Constitutional challenge
Washington's constitution has been amended more than a hundred times since statehood in 1889. The process is clear under Article XXIII of the Washington State Constitution: two-thirds of the House of Representatives and Senate each must agree to make the change. Then, a majority of voters must ratify the change at the next general election. Legislators get to propose amendments, but the people ultimately get the final say. It is, in almost every respect, the most democratic amendment process in the country.
Six Legislatures (1934, 1936, 1938, 1942, 1970, and 1973) understood that process and used it in trying to impose a graduated income tax. Each time, they proposed an amendment to voters for consideration. Voters said no all six times. This Legislature could have been the seventh to take the lawful path and ask voters, but it chose not to, and these public records show exactly why.
Getting the Supreme Court to reconsider Culliton
The decision not to ask voters shows up in the record as early as August 2025, six months before ESSB 6346 (the income tax bill) was introduced. In an email to Jeff Mitchell, fiscal coordinator for the Senate Ways and Means Committee, Senate Majority Leader Pedersen spelled out what he actually wanted from the bill he was drafting:
"I expect that the bill will get challenged in court. I would like to force the Washington Supreme Court to reconsider its caselaw that considers income to be property. Do you have any other suggestions about how to bolster the argument that this would be an excise tax and not a property tax?"
The prime sponsor of the legislation, months before a single public hearing, told legislative staff in plain terms that the legislation's real purpose was to tee up a constitutional challenge and force the Supreme Court to reconsider Culliton. The revenue projections, the small-business credits, the hearings that would follow — all of it was downstream of a decision that had already been made.
By December, Sen. Pedersen was ready to formalize the strategy. He forwarded an initial bill draft directly to Solicitor General Noah Purcell, the state's top appellate lawyer. Sen. Pederson asked Purcell for feedback about “what will give us the best shot to have Culliton overruled."
Purcell and his colleague, Sr. Counsel Chuck Zalesky in the AG's Revenue Division, spent the following weeks reviewing the draft with overturning Culliton explicitly in mind. In a December 9 memo to Purcell, Zalesky wrote that none of his proposed edits "substantively relate to fixes that will make it easier to convince the Supreme Court to overrule Culliton." The word is worth lingering on — overrule, not interpret, not clarify, not narrow. That is how the state's own senior revenue counsel described the task.
On January 19, 2026, weeks before the first public hearing, Zalesky reduced the whole project to a single sentence in an internal memo:
"The overall legislative goals, it seems to me, are to (1) have our Supreme Court overturn Culliton v. Chase, (2) craft a tax that the voters will support, and (3) craft a tax that is administrable by the Department of Revenue."
The final email in the thread, from February 20, 2026, details priorities. Asst. AG Dan Jensen, debating whether to defend the bill's marriage penalty or strip it out, told his colleagues, "that is not a fight worth having as the important constitutional issue is to get Culliton overturned."
The Jensen email illustrates a broader pattern visible throughout these records: provisions were being evaluated not only on their merits as tax policy, but on whether they helped or hurt the court case.
Blocking voters from referring the statute to the ballot
Lawmakers reasoned that even if their plan was to eventually succeed at the Supreme Court, voters still had one last tool to block the income tax before it took effect: the referendum. A referendum allows citizens to collect signatures to refer a newly passed statute to the ballot before it takes effect. Emails show this democratic part of the process was seen by Purcell and Pedersen as an obstacle.
On December 11, 2025, Purcell sent Sen. Pedersen his formal review of the bill. Near the end, he flagged this issue:
"Unless I missed it, I did not see an emergency clause. Without one, someone could try to subject the bill to a referendum… someone would have to sue to prevent a referendum on the bill as written. I just wanted to make sure you were aware of that."
The concern Purcell identified was procedural: without an emergency clause, the public could refer the bill to the ballot. His proposed solution was to put in a necessity clause, which has a similar effect of exempting a bill from referendum on the theory that the statute is so urgently needed that the public cannot wait a few months to collect signatures and put the question on the ballot.
Sen. Pedersen took Purcell’s advice and ESSB 6346, as passed, contains a necessity clause declaring the tax essential to the immediate preservation of the public peace, health, or safety, or the support of state government.
Notably, the tax does not take effect until January 1, 2028. No one will owe a dollar until their returns are filed in April 2029. State government will not collect a penny from this tax for another three full years. There is no plausible reading of the bill's timeline that makes the necessity clause defensible on its own terms. A tax that doesn't take effect for nearly two years and doesn't collect for three cannot credibly be described as essential to the immediate preservation of state government.
And the December 11 email goes further. Purcell didn't just flag the referendum risk, he also offered to help Sen. Pedersen preempt the constitutional challenge the bill was designed to provoke:
"It might be useful for the legislature to say something about why the Culliton line of cases is harmful (e.g., that it leads to WA having such a regressive tax system)."
The Solicitor General's statutory role is to defend the constitutionality of state laws. What Purcell was suggesting is something different: that the Legislature write policy-based findings about Culliton being "harmful" directly into the bill, giving the court a political argument, not a legal one, to lean on when it reconsiders precedent.
Conclusion
Legislatures pass laws all the time hoping to prompt courts to revisit old rulings. That is a routine feature of how the system works. What distinguishes this discussion on the state income tax is not that Sen. Pedersen wants the Supreme Court to reconsider Culliton v. Chase; he has said so publicly for years. What distinguishes it is the combination of three choices that aim to push voters out of the decision.
Washington's constitution contains a specific mechanism for exactly this situation. When legislators disagree with how the courts have interpreted the constitution, Article XXIII lets them propose an amendment and ask voters to ratify it.
Normally when a legislature passes a bill likely to be challenged, the AG's office reviews it for defensibility. It does not typically help draft statutory intent language engineered to persuade a court to set aside a 93-year-old precedent. Solicitor General Purcell's December 11 email, suggesting Pedersen insert language about why Culliton is "harmful," blurs the line between advising on the drafting of legislation and advocating for a particular political outcome. The Solicitor General will ultimately be responsible for defending whatever the Legislature passes. These records show him helping shape the statute itself, with the court challenge already in mind.
And then there is the necessity clause. Lawmakers regularly pass legislation they know will be challenged in court. They do not usually pair it with a procedural maneuver to block voters from overturning the same statute at the ballot, especially on a bill that does not collect a dollar for three years.
Any one of the three moves here is defensible on its own terms. A legislature can pass a law it hopes will prompt a court to reconsider precedent. An AG's office can advise a sponsor on how to draft a statute. A legislature can declare a bill necessary to the operations of state government. What these emails reveal is a Legislature that made all three choices at once, in coordination with the state's top appellate lawyers, with the effect of keeping the people of Washington out of the decision at every stage.
