The people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.
--Washington State Constitution, art. II, ¤ 1

The powers of initiative and referendum were added to the constitution through the enactment of Amendment Seven in 1912. With the exception of some constitutional restrictions, the initiative and referendum place the people on par with the legislature, in essence allowing the voters to serve as a second legislature. However, the exercise of direct democracy has not always been smooth. These powers have resulted in inconsistent legislation and contentious court battles and the Supreme Court has not hesitated to strike down actions that do not fall within the lines established by art. II, ¤ 1. Unfortunately those lines have been none too clear.

Two Separate Powers
The constitution establishes two similar but distinct powers. The initiative allows the voters to propose a new law, while the referendum allows voters to accept or reject certain laws passed by the Legislature. Both are initiated by the submission of a petition to the Secretary of State with a requisite number of valid signatures of Washington voters, however the requirements and processes involved differ greatly.

Initiative to the People
There are two types of initiatives. The initiative to the people and the initiative to the Legislature. In recent years, Washington voters have become quite familiar with the initiative to the people, as several high-profile initiative campaigns were run. Upon passage, many of these initiatives became high-profile court cases.

Process
An initiative starts with the filing of the proposed measure with the office of the Secretary of State ten months prior to the general election for which it is to appear on the ballot (early January).1

Upon receiving the proposed measure, the Secretary of State submits it to the Code Reviser for review. The Code Reviser will advise the proponent of any conflict between the measure and existing law and may recommend changes to the measure. Such recommendations are purely advisory.

The sponsor then has 15 days to file the measure and the certificate with the Secretary of State. The Secretary of State assigns the measure a number and sends the measure to the Attorney General, who prepares a ballot title and summary. The title of an initiative is limited to 25 words and must give a true and impartial statement of the purpose of the measure. The summary is limited to 75 words.

The proponent of the initiative then has until four months prior to the general election (early July) to gather a sufficient number of signatures to qualify the initiative for the ballot. The number of signatures required is eight percent of the number of votes cast in the most recent gubernatorial election (the current minimum is 197,734). The petitions must include the ballot title, include the text of the measure, and must comply with other statutory requirements.

There are few restrictions on the signature-gathering process. Paid signature gatherers are permitted (and in recent years nearly all successful signature-gathering campaigns have used paid signature gatherers). However, bribes, threats, and intimidation are not allowed in the effort to persuade voters to sign or not sign a petition.

Once the sponsor submits the signed petition to the Secretary of State, the Secretary must accept and file the petition unless there is a statutory reason to reject the petition. The Secretary may reject the petition if it has an obviously insufficient number of signatures, if the petition is in an improper form, or if the petition is filed late.

Upon acceptance, the Secretary will verify the signatures. Upon verification, if enough signatures have been presented, the Secretary certifies the measure. Once a measure is certified, the Secretary will notify the County Auditors, who have the responsibility to place the measure on the ballot.

Substance
While the scope of the initiative power is quite broad, there are limits. First, initiatives must have legislative effect, they cannot merely express wishes and desires. Second, initiatives may not be used to amend the constitution. Third, they may not extend beyond matters “legislative in nature,” that is, they may not be “merely administrative” or exceed the legislative authority of the state legislature.2 Finally, the initiative must comport with the constitutional limits placed on the Legislature. Specifically, the initiative must encompass only a single subject, and that subject must be reflected in the title. A great deal of litigation has resulted from this requirement and initiative drafters are cautioned to carefully consult the case law on this subject.

Beyond those narrow restrictions, the power of initiative is basically unchecked, and unlike the Legislature in session, voters do not need to make difficult decisions regarding funding of initiative requirements, nor are they required to balance the budget after passing an initiative, these tasks are left to the Legislature.

As one wry commentator noted, voters will approve an initiative “requiring diamonds to rain down from the sky” without regard for the cost. This of course has resulted in consternation from those responsible for making difficult decisions, and has created a call for reform of the process.

Judicial Review of Initiatives
Prior to the election on the initiative, judicial review is strictly limited. Any person may file an appeal to the Superior Court of Thurston County to challenge the ballot title or summary of an initiative, but such an appeal must be filed within five days of the notice given by the Secretary of State. The court will hear the case on an expedited basis and will certify to the Secretary of State the title and summary. No appeal is permitted from this decision, except in the rarest of circumstances.

If the Secretary rejects a petition upon the submission of signatures, review may be had by Writ of Mandamus, however there is no appeal from a decision accepting the petition. Similarly, an individual wishing to challenge the decision of the Secretary regarding the number of valid signatures may do so by Writ of Mandamus in the Superior Court of Thurston County within five days. The court will give great deference to the Secretary’s decision.

After certification, the only pre-election challenge to an initiative that is allowed is a challenge that the initiative is beyond the scope of the initiative power, and such challenges will be heard before the election only if there are compelling reasons to do so.

After the election, an initiative that passes is treated just as any other statute and may be challenged for any reason. However, unlike other statutes, the Legislature may not repeal an approved initiative for two years, and may only amend the initiative during that time upon a 2/3 majority vote.

Initiative to the Legislature
The lesser-known brother of the initiative to the people is the initiative to the legislature. It arises and is handled the same as the initiative to the people, although the ten month schedule ends at the beginning of the legislative session rather than at the general election.

When the Secretary of State certifies the measure, the Secretary certifies it to the Legislature instead of the County Auditors. Upon receipt, the Legislature has three options. It may enact the initiative as written, reject the initiative, or propose an alternate measure. If it enacts the initiative, it becomes law (subject to referendum). If the Legislature rejects the initiative, it will appear on the next general election ballot as an initiative to the people.

When the Legislature proposes an alternative, both the original initiative and the alternative appear on the ballot, and the voter is faced with two questions: First, the voter is asked whether either measure should be enacted; next the voter is asked which alternative should be enacted if one is enacted. If the majority favors enacting a measure, the measure with the majority of votes in the second question is enacted. If the majority does not favor one of the choices, the measure fails, regardless of the second vote.

Referendum
Referenda apply only to bills enacted by the Legislature and signed into law by the Governor. The process begins with the filing of a copy of the act or part of the act upon which the referendum is desired. The only question asked by a referendum is whether the law or part of the law identified should take effect. A referendum may not add anything to an act.

Petitions with a sufficient number of valid signatures must be presented to the Secretary of State within 90 days of the adjournment of the legislative session, regardless of when the act was signed into law. The number of signatures required is half that of the number required for an initiative (four percent of the last gubernatorial vote, currently 98,867).

If a sufficient number of signatures are received, and there is no constitutional or statutory infirmity, the Secretary of State must certify the measure for the ballot. Upon certification, the effective date of the legislation is automatically suspended until 30 days after the next general election. At the general election, the voters are asked whether the enactment passed by the Legislature should be accepted or rejected.

Because the filing of a referendum suspends the law from taking effect, certain laws are exempt from the referendum power. These are laws that “are necessary for the immediate preservation of the public peace, health or safety,” and laws that are necessary for the “support of state government and its existing institutions.” These two exceptions operate independently of each other. Since the referendum is a constitutional right reserved by the people, any exception to the power is narrowly construed.

The first exception is ordinarily referred to as the “emergency clause.” The rule is that a legislative declaration regarding an emergency must be deemed conclusive unless it is “obviously false and a palpable attempt at dissemination.” The scope of the legislation that can be brought within the emergency clause by legislative declaration is as broad as the police powers of the state. Thus the building of sports stadia is, upon legislative declaration, an emergency. Similarly, a declaration by the Legislature that a particular law is not an emergency, should be deferred to by the courts absent obvious falsity.

When the legislature is silent with regards to the existence of an emergency, the Court may search for legislative intent in the language and circumstances surrounding the enactment of the law. However, only if the court finds a clear intent to treat that law as an emergency will the court find an emergency. Mere expediency or convenience does not constitute an emergency. As a practical matter, no court has ever found an emergency absent a legislative declaration. In fact, the Supreme Court has questioned whether it could ever find an emergency absent a legislative declaration as to do so would place the court in the role of the Legislature.

The second exception, the “support clause” exception, applies only to financial support of an existing institution. If the law in question does not provide for financial support, either through collection of revenue or allocation of funds, the law is subject to referendum. Even if the law does provide for collection or appropriation of funds, it may be subject to referendum if those funds do not go to the support of an existing state institution. A law that includes funds allocated for a new venture is subject to referendum.

Conclusion
Populist sentiment brought the initiative and referendum to Washington, and if the current debate over partisan primary elections is any indication, that sentiment remains strong today. Undoubtedly there are flaws in the system, and individuals with personal agendas will exploit those flaws. In 1912 the people of Washington believed that the common sense of the electorate would prevent unwise decisions. Whether that belief holds true today remains to be seen.