The Architect

Part 2 of 3 — How the 9.9% Income Tax Was Engineered

Illustration: an exchange of drafts between offices, December 2025 — January 2026

Part 1 made the case that letting the income tax stand would be existential. This part is about the documents — because the most important thing to understand about ESSB 6346 is that it was not a mistake, not a routine piece of revenue policy, and not the product of normal legislative sausage making. It was a sharply designed legal instrument, drafted in coordination across all three branches of state government, for the explicit purpose of overturning 93 years of constitutional law without the inconvenience of a constitutional amendment.

That isn’t an inference. It’s in the email record.

What Pedersen Wrote, in His Own Words

Start in 2018. Now Senate Majority Leader Jamie Pedersen, then a senator from Seattle’s 43rd district, was building support among Democratic colleagues for a capital gains tax. The Washington Policy Center later obtained the public records. Pedersen’s reasoning was unambiguous:

“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.”

— Sen. Jamie Pedersen, 2018 email to Democratic caucus

Read that twice. The point of the capital gains tax was not the revenue. The point was the lawsuit it would invite — a lawsuit designed to give a friendly Supreme Court the chance to “revisit” a long line of contrary precedent and, in the process, unlock a graduated income tax that could be enacted “with a simple majority vote.” No constitutional amendment. No two-thirds requirement. No ratification by the people. A workaround.

That’s not opposition spin. That is the architect’s own words, in writing, to his colleagues, with footnoted purpose.

The capital gains tax passed in 2021. The lawsuit followed. The state Supreme Court upheld it in Quinn v. State in 2023, framing it as an excise tax rather than disturbing the underlying Culliton precedent on income. So the workaround didn’t fully work — Culliton held — but the test case was in play. The next move was already being planned.

The Pattern Was Older Than Pedersen

Pedersen’s 2018 email gets the headlines because it’s the clearest statement of intent. But the same records show this strategy was already mature within the Democratic caucus years earlier. Senator David Frockt was circulating constitutional analysis from former Supreme Court Justice Phil Talmadge (the same Phil Talmadge now helping advance the constitutional legal challenge through Citizen Action Defense Fund) as early as 2011 — analysis warning that the “income equals property” precedent was firm and that the capital gains workaround was, in Talmadge’s words, the product of someone “dreaming.” Frockt himself, in a 2012 email to his caucus, was openly uncertain whether the proposal could survive constitutional scrutiny:

“I think if it is held as income — the five percent rate takes it well above the uniformity clause rate of one percent and thus makes it vulnerable on that ground as well as on the ground that the $10,000 exclusion is not valid because it creates two separate classes of taxpayers.”

— Sen. David Frockt, 2012 email

A summary of a 2014 caucus call between Democratic legislators is even more revealing. The discussion was about how to characterize the tax. The notes:

“Very preliminary legal analysis by structuring this as an excise tax — as a flat tax, we can legally classify it as an excise tax and not an income tax — so we can avoid an income tax in our state — Supreme Court would have to rule on whether this is an appropriate excise tax.”

— Notes from 2014 caucus call, Reps. Fitzgibbon, Frockt, Jinkins, Lytton, Ryu, Wylie

“So we can avoid an income tax in our state.” This is the operative phrase. The drafters knew exactly what they were doing — picking a label that the courts would have to decide on, rather than enacting what the document plainly was. The IRS, for what it’s worth, has been clear for decades that capital gains are income, taxed as such under the federal code. The lawmakers knew this too; they were betting the state Supreme Court would accept the relabeling even though the federal taxing authority does not.

That bet paid off in Quinn. The state’s high court accepted the excise framing in 2023.

And then 2026 arrived.

December 2025: The Inner Circle

Run the tape forward to last December. Pedersen, now Senate Majority Leader, is preparing what will become ESSB 6346 — a 9.9% tax on Washington taxable income above $1 million per household. On December 6, 2025, he emails Solicitor General Noah Purcell — the chief appellate lawyer for the State of Washington, employed by the Attorney General’s office — with a draft of the bill. His cover line:

“I welcome your thoughts and comments about what will give us the best shot to have Culliton overruled.”

— Sen. Jamie Pedersen to Solicitor General Noah Purcell, December 6, 2025

The bill sponsor is asking the state’s chief appellate lawyer for input on how to draft a bill so that the Supreme Court — the same court the Solicitor General argues in front of professionally — will overturn 93 years of its own precedent. This is not a request for routine legal review. This is co-authorship of a litigation strategy, with the executive branch’s lead courtroom lawyer pre-coordinating with the legislative branch’s lead sponsor on how to frame the constitutional question the executive branch will then defend in court.

Purcell responded five days later. The response was procedural and damning:

“I did not see an emergency clause. Without one, someone could try to subject the bill to a referendum. It should not be subject to referendum because it raises revenue, but under the Secretary of State’s longstanding practice, they only reject proposed referenda if the bill has an emergency clause, so 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.”

— Solicitor General Noah Purcell to Sen. Pedersen, December 11, 2025

The Solicitor General of the State of Washington, in writing, advised the Senate Majority Leader that the bill needed additional language to insulate it from a public vote. The legislature added that language. ESSB 6346, as enacted, contains the necessity clause. When Let’s Go Washington filed for referendum anyway, the Secretary of State rejected the filing. And the design wasn’t just to block the referendum — it was to force opponents to sue, then defend the bill in-house on state tax dollars rather than retain outside counsel (likely Pacifica Law, the AGO’s preferred legal pit bull) at additional public expense.

The Supreme Court, hearing the mandamus petition this spring, unanimously affirmed the rejection. The Washingtonians who would have voted on this tax never got to. The decision, affirmed by the Supreme Court, is that YOU can’t vote via referendum on any tax, EVER. Does that seem like what the people voted on when enacting the progressive referendum amendment in 1912?

That outcome was engineered in December, in an email, between two officials.

January 2026: The Brand-Naming Session

A month later, Senior Counsel for the Attorney General’s office Chuck Zalesky weighed in on framing. The bill at the time was being marketed as a kind of excise. Zalesky’s January 7 advice to Pedersen:

“Don’t refer to the tax as an excise tax — that will only make the Leg. seem disingenuous. Instead, tee it up as a test case to try to get the ‘income = property’ line of cases overruled.”

— AGO Senior Counsel Chuck Zalesky to Sen. Pedersen, January 7, 2026

“Tee it up as a test case.” This is staff counsel inside the Attorney General’s office advising the Senate Majority Leader on courtroom strategy — specifically, how to position the bill so the Supreme Court would treat it not as a revenue measure but as the vehicle for reversing constitutional precedent. The Attorney General’s office, which under the state constitution is the legal officer charged with defending the constitution, was actively coaching the legislature on how to attack it.

When this came out, the Attorney General’s office defended the arrangement as routine. Pedersen told The Center Square that “it is absolutely normal for legislators to consult with the attorney general’s office on bills.” It is not. The legislature has its own dedicated nonpartisan legal staff — the Office of the Code Reviser, Senate Counsel, House Counsel — whose job is bill drafting. The Attorney General’s office is not in that workflow as a matter of course. It was in this workflow because this bill required it.

The most authoritative rebuttal of the “normal course of business” framing came from the one person whose word on what is normal cannot easily be dismissed: former Washington Attorney General Rob McKenna. McKenna served as the state’s AG from 2005 to 2013 — eight years running the office Pedersen now claims was just doing routine work. He is currently a partner at Orrick’s Seattle office, and he joined the constitutional challenge to ESSB 6346 alongside former Supreme Court Justice Phil Talmadge through the Citizen Action Defense Fund. Asked about the 988 pages of emails:

“I had not seen before this week an example of the AG’s office actively collaborating with a legislative sponsor on how to draft a bill that could get the Constitution basically reinterpreted, and 95 years of precedent overturned.”

— Former Attorney General Rob McKenna

McKenna described what the AGO’s legitimate interaction with legislators is supposed to look like:

“When we went over to talk to the legislature about proposed legislation that was unconstitutional or problematic, we would have a conversation with them behind closed doors and say, ‘Look, you got a problem. This is why we think the problem is — for example, we think your bill violates the Constitution, and you might want to rethink it, because it could invite a court challenge.’”

— McKenna, describing the AGO’s traditional advisory role

That is the legitimate function. Tell legislators when a bill has constitutional problems. Not: help legislators draft the bill so its constitutional problems become a vehicle for overturning the precedent that creates them. McKenna’s framing of the institutional purpose is worth quoting in full:

“The reason we have an elected Attorney General in our state…is to have an independent officer and office that will defend the Constitution and the laws of the state. Getting into the role of strategizing with a legislator on how to get around the Constitution just isn’t right. It should not be done.”

— McKenna, April 2026 interview with The Center Square

The Citizen Action Defense Fund’s Jackson Maynard, whose organization filed the constitutional challenge, put the same point more bluntly: “The Attorney General’s role is to defend the constitution, not help the legislature find ways to violate it.” Two former officers of the constitutional bar, with no possible motive other than professional concern for the institution, have publicly said the AGO’s conduct here was wrong. The current AGO’s defense is that everyone does this. The two people most credentialed to evaluate that claim say no, they do not.

April 2026: The Cleanup

After the bill passed and Let’s Go Washington filed for a referendum, the Attorney General’s office prepared its response to the resulting litigation. A draft response by Deputy Solicitor General Karl Smith — a former clerk to the Washington Supreme Court — circulated internally. One passage:

“Giving the People a chance to reject it by referendum might be an attractive option to justices who want to punt on the constitutional question.”

— Deputy Solicitor General Karl Smith, internal draft, April 7, 2026

Smith was wargaming the court he had clerked for. He was assessing, for his colleagues, the probability that individual justices might let the people vote on the tax purely to avoid having to rule on whether it was constitutional. In another internal note, AGO staff described the Supreme Court as “as favorable a venue as we’re likely to get.”

That phrase — “as favorable a venue as we’re likely to get” — is worth dwelling on. It comes from inside the state’s own legal office. It is an assessment, by the lawyers who litigate constitutional questions before the Washington Supreme Court for a living, that the current bench is structurally favorable to the legislative outcome. Not neutral. Favorable.

The court ruled in early May.

May 2026: The Court Rules

The order was signed by Chief Justice Debra Stephens. The operative holding:

“Consistent with the words of the constitution and our unbroken line of precedent, we hold that ESSB 6346 falls within the exception for laws that are ‘necessary for the . . . support of the state government’ and not subject to referendum under article II, section 1.”

— Washington Supreme Court, May 2026

Read those first eight words again. “Consistent with the words of the constitution and our unbroken line of precedent.” The court is claiming the mantle of restraint — fidelity to text, fidelity to precedent — in a ruling that holds a brand-new 9.9% income tax, not effective until 2028, is “necessary for the support of the state government.” Necessary for what state government cannot already fund through every other tax described in Part 1. The same constitutional language the court invokes here as binding — “unbroken line of precedent” — is the same body of precedent that, applied to Culliton, has held for 93 years that income is property. The court does not appear troubled by the asymmetry.

The order included no vote tally. The court also did not reach the constitutionality of the tax itself — only the referendum question. The constitutional challenge filed by Citizen Action Defense Fund — with Rob McKenna as lead counsel and Phil Talmadge on the team — is on a separate track and still live.

That sequencing matters. The court killed the referendum first — preserving its own freedom to handle the Culliton question, on a vehicle the AGO helped design, on a timeline the court controls. Karl Smith’s April assessment that the bench is “as favorable a venue as we’re likely to get” was not bravado. It was an accurate professional read.

McKenna saw what the ruling signals beyond this case:

“It is systematically undermining the checks and balances which our voters built into the Constitution. It was the voters who said, ‘we want the power of initiative, and we want the power of referendum.’ This is a great concern. It is undermining the various systems that our voters put in place many years ago.”

— McKenna, on the broader pattern of emergency-clause use

That is the move. The legislature attaches a necessity clause to a bill it does not want the public to vote on. The AGO advises on how to make the clause stick. The Secretary of State rejects the referendum filing. The Supreme Court affirms the rejection on grounds that read “necessary” expansively enough to swallow any future revenue measure. The 1912 referendum amendment — the one Washingtonians passed precisely to give themselves a veto on the legislature — is now, in practical effect, a dead letter on any bill the majority labels “necessary.”

Pedersen’s post-ruling spin is worth pausing on:

“The court has now said, what we said all along, which is the referendum power does not apply to tax measures, period. It doesn’t matter whether we put language in there or not.”

— Sen. Jamie Pedersen, after the May ruling

If the necessity clause didn’t matter, why did the Solicitor General of Washington draft a December 11 memo specifically advising it be added? Why did the legislature then add it? Either Pedersen is wrong now, or the AGO’s involvement in drafting it was wrong then. The “normal course of business” defense cannot survive Pedersen’s own admission that the language the AGO told him to add wasn’t necessary. One of those two stories is false. Both cannot be true.

The Washingtonians who would have voted on this tax via referendum do not get to. Under this ruling, they will not get a referendum on any future tax bill either, so long as the legislature attaches the magic words.

What the Record Actually Shows

Step back and look at what these documents establish, in chronological sequence:

● 2011–2014: Democratic legislators circulate constitutional analysis and discuss how to characterize an income tax as something else, so the Supreme Court would have to “rule on whether this is an appropriate excise tax.” They know it’s an income tax. They are looking for a label.

● 2018: The Senate Majority Leader puts in writing that the purpose of the capital gains tax is to create a vehicle to overturn the Supreme Court’s standing precedent on income, in order to enable a graduated income tax by simple majority.

● 2023: The Supreme Court upholds the capital gains tax as an excise. Culliton survives, narrowly.

● December 2025: The Senate Majority Leader sends the Solicitor General a draft of the next bill and asks him to help craft language designed to overturn Culliton. The Solicitor General responds with drafting advice to shield the bill from a public vote.

● January 2026: Senior Counsel inside the Attorney General’s office advises the legislator on how to frame the bill in court as “a test case to get the ‘income = property’ line of cases overruled.”

● March 2026: Bill is signed.

● April 2026: The AGO drafts its defense of the bill, including internal assessments that the current Supreme Court is the most favorable venue available and that some justices may “punt” by letting voters decide.

● May 2026: The Supreme Court rules unanimously that voters will not decide.

That sequence is not normal legislative process. It is a coordinated, multi-branch, multi-year operation in which the legislature, the executive branch’s chief legal office, and a friendly Supreme Court have been positioned to produce a particular outcome. The “millionaire’s tax” framing for the public, the “test case” framing internally — they are the same bill. The public got the marketing copy. The court got the legal vehicle.

What This Tells Us About the Institution

The architect isn’t Jamie Pedersen alone. It can’t be. A single legislator cannot conscript the Solicitor General, the Senior Counsel of the Attorney General’s office, the Secretary of State’s procedural rulings, and a Supreme Court majority — not without an entire institutional ecosystem that has been told, for decades, that this is the project and these are the rules.

The architect is the system. The Democratic caucus’s two-decade march toward this moment. The judicial appointments that gradually shifted the court’s composition. The professional staff who absorb the strategy as their job. The bar associations and academic networks that produce the lawyers who clerk for the right justices and then argue the right cases. The donor classes and the union political programs that fund the campaigns that elect the legislators who appoint the regulators who hire the staff. The whole closed loop Part 1 described — only now you can see what it is for. This is what it is for. ESSB 6346 is what the loop produces.

And the loop is not finished. Five of nine seats on the Washington Supreme Court are on the ballot this November. The current best read of the court’s composition is that seven justices are likely to uphold a labeled income tax and two are likely to strike one down. All five ballot seats are currently held or contested by justices and candidates whose records suggest they will uphold a labeled income tax. If they hold those seats — or if challengers don’t unseat any of them — the court that will hear the constitutional challenge to ESSB 6346 is the same court that already concluded the bill is shielded from referendum. The same court the AGO described as “as favorable a venue as we’re likely to get.”

That is the architecture. That is the engineered outcome.

Two Doors, One Ballot

If the documents are the indictment, the question that follows is what to do about it. The instinct is to wait for the lawyers — the CADF challenge is real, well-resourced, and pressing forward. But that won’t be enough.

Here is the legal mechanic that most readers do not yet have. The constitutional challenge to ESSB 6346 will be heard and decided after the November 2026 election. If voters pass IP26-645 — the Let’s Go Washington initiative to repeal the income tax — the CADF challenge becomes moot. There is no tax left to challenge. The repeal does the work the litigation was meant to do, and does it cleanly, without depending on which way the current Supreme Court swings on Culliton.

But understand what the initiative path actually costs. An initiative requires roughly twice as many voter signatures to qualify for the ballot as a referendum does. The court that just told voters they cannot referendum a tax bill has simultaneously raised the bar on the only remaining mechanism by which voters can act. Engineered or not, the effect is the same: less voice, more work to reclaim it.

But repeal does not end the legal fight. It moves it. Pacifica Law Group — the firm the Attorney General’s office reaches for when it wants outside counsel to win difficult cases — has a documented track record of overturning voter-approved Washington initiatives on technical constitutional grounds. They also challenge nearly every ballot title submitted by Brian Heywood of Let’s Go Washington. Tim Eyman’s I-1053 (the supermajority-for-tax-increases measure) and I-976 (the $30 car tabs measure) were both struck down by the state Supreme Court after Pacifica-led challenges. They are the same firm now challenging I-2066, the 2024 voter-approved measure that blocked Washington’s ban on natural gas service — a Supreme Court decision curiously yet to be announced. A successful IP26-645 will almost certainly face the same playbook. And the court that hears that challenge is the court the November ballot produces.

That is the dual-lever reality. The initiative and the Supreme Court races are not two separate engagements. They are the same engagement, on the same ballot, in November.

Passing the initiative without flipping any seats hands the same court the AGO called “as favorable a venue as we’re likely to get” the chance to overturn the very repeal voters just enacted. Flipping seats without passing the initiative leaves ESSB 6346 on the books for a court fight that, even if won, leaves the Democratic majority free to pass a slightly-different version next session. Either lever alone fails. Both, or neither matters.

That is what Part 3 is about. What IP26-645 actually does. Which five Supreme Court seats are up, and who holds them. What the Pacifica playbook looks like, and which provisions of the initiative will be in its crosshairs. And what an ordinary Washingtonian — busy with family, business, church, community — can actually do between now and November.

One initiative. Five Supreme Court seats. One ballot. Part 3 will now publish Tuesday.