OLYMPIA – This is the time in the annual election cycle when people who tried but failed to defeat a ballot initiative begin filing legal challenges. It’s also when people happy the initiative passed get upset and start talking about the will of the people.
The 2019 iteration has supporters of Initiative 976 calling or writing to complain about the lawsuit filed by the city of Seattle and others that contends the measure is unconstitutional.
Why should the courts get to overrule the voters, once the voters have spoken? they asked.
The answer is pretty basic to the separation of powers, which folks tend to like more when it works in their favor than when it works for the other guy. The main thing to remember is initiatives are like a bill that the Legislature passes and the governor signs into law: If there’s something wrong with them, it’s the court’s job to stop them from taking effect, even when they pass with sizable majorities.
Although almost no one would say the Legislature never makes a mistake, some seem to think the voters’ combined wisdom should never be questioned.
This bit of populist doctrine actually falls apart when one realizes that the percentage of voters who read the entire text of an initiative – I-976 was 18 pages of fairly dense matter with tax rates and vehicle weight charts – is almost certainly no greater than the percentage of legislators who read a bill before they pass it.
Most voters read the bill title and maybe the brief description, and mark their ballot with that information colored by whatever commercials or mailers they’ve digested.
The Legislature employs people with the special skills of writing laws so they know things like where a sentence needs a semi-colon and not a comma or where it’s important to put “shall” instead of “may.” People who write initiatives sometimes have those skills, but there’s nothing that says they must.
It’s also worth noting that if the first draft of a bill has a mistake, the Legislature can fix that in committee or before it comes up for a vote on the floor or in committee in the other chamber, or before it comes up for a vote in that second chamber. Or the governor could veto a particularly problematic section while keeping the rest of the legislation.
Once an initiative is filed and signature-gathering starts, any mistake is baked in and can’t be fixed without starting all over. You don’t get the time back and the signatures are thrown out.
Because this is politics, what some see as a huge mistake in a new law that should result in the whole thing being thrown out, others see as a minor issue that can easily be worked around. Deciding who’s right – or in some cases, who’s more right – is the job of the courts.
People who support an initiative that’s being challenged sometimes get a bit snippy and accuse opponents of “suing the voters” or “ignoring the will of the people.” Those are catchy phrases, but they’re horse pucky.
Opponents are suing the state, which has voters who supported the initiative and voters who opposed it because nothing passes by 100%. They’re challenging specific aspects of the initiative, and they’ll have to make their case when up against people who are experts at defending a law that is presumed to be legal unless proven otherwise.
The phrases are also used selectively. For example, some conservatives might be all for the will of the people when it comes to sticking with an initiative that required super majorities to pass taxes, but all for overturning the public will on gun safety initiatives.
Before you say you are a constitutionalist because of the Second Amendment, remember that how the Legislature passes the taxes we pay is also in the constitution.
Some Puget Sound officials who breathe a sigh of relief when their progressive initiatives pass because of big majorities in a couple of “enlightened” West Side counties may be happy to sue over I-976, now that the margins in their jurisdictions weren’t enough to swamp the no votes in the rest of the state.
In both cases, the people suing are convinced that they know better than the majority of the voters. They may be right, or they may be crazy, as the song says. But it’s the court’s job to figure that out. Otherwise we could be stuck with a bad decision by the voters for a while.
Close, but no cigar
When Referendum 88 see-sawed between slightly up or down last week, some people wondered if we were going to see the closest ballot measure results in state history. It wasn’t to be.
At last count, the affirmative action law was being rejected 49.45% to 50.55%, by a margin of about 21,000 votes. Several statewide ballot measures have been much closer, by percentages and vote margins.
In 1991, a measure expanding the abortion law passed 50.14% to 49.86%, with a 4,299 vote margin.
In 1990, SJR 8212, on low-income tax values, failed 49.94% to 50.06%, or by 1,540 votes.
In 1977, I-348, involving variable gasoline taxes, failed 49.95% to 50.05% or 884 votes
In 1930, I-57, the legislative redistricting law, passed 50.17% to 49.83%, or by 795 votes.