Final Report of King County Bar Association Referendums & Initiatives Project to KCBA Public Policy Committee
In November 2015, the Referendum and Initiative Project Subcommittee of the King County Bar Association’s Public Policy Committee presented its final report to the KCBA Board of Trustees. The Public Policy Committee will be organizing a forum this year on the issues addressed in the report, as KCBA explores engaging in advocacy on these issues in a long-term way, following the model of the Drug Policy Project in recommending reforms between 2000 and 2008.
The report will be serialized in the next several issues of the Bar Bulletin. (The “parts” in which the report is divided for publication do not expressly conform to sections of the report, but are used only for the sake of convenience, i.e., available space). This month we present Part II of this continuing series.
1.2 Constitutional Limits to Reforms
Washington’s initiative and referendum process has both state and federal constitutional dimensions that subject reforms of the process to heightened judicial scrutiny and may limit or eliminate the availability of some reforms. Except where specifically noted, the Subcommittee has recommended reforms that will not require an amendment to the Washington Constitution. In addition, all reforms recommended by the Subcommittee are consistent with current jurisprudence under the federal Constitution.
The initiative is protected by the First Amendment of the U.S. Constitution. Although there is no federal requirement for an initiative or referendum process, if a state creates an initiative process, participation in the initiative process is considered a form of political speech, and “the state may not place restrictions on the exercise of the initiative that unduly burden First Amendment rights.”1 The courts therefore subject any “burden on the exercise of [initiative] rights to exacting scrutiny.”2
When courts apply “exacting scrutiny” to the constitutionality of initiative reform measures, “‘[n]o litmus-
paper test’ will separate valid ballot-
access provisions from invalid interactive speech restrictions” and states are accorded “considerable leeway to protect the integrity and reliability of the ballot-initiative process.”3 However, the state must demonstrate a “substantial relation” between any limitation on the initiative process and “a ‘sufficiently important’ government interest.”4
Applying “exacting scrutiny,” the courts have struck down a number of prior attempts at initiative reform. For example, the Washington courts have concluded that prohibiting duplicate signatures on an initiative petition is a valid measure to ensure the integrity of the petition process, but that striking all instances of duplicative signatures goes too far. Citizens exercising their First Amendment right to sign an initiative petition are entitled to have their signature counted once, even if that person later signs the same petition on one or more occasions.5
Similarly, the United States Supreme Court has struck down a prohibition on paid signature gatherers, a requirement that paid signature gatherers be registered voters, a requirement that signature gatherers wear a badge identifying them by name, and a requirement that each paid signature gatherer reveal his or her name and address and the amount he or she has been paid.6 The Ninth Circuit, acting on the strength of the Supreme Court’s Citizens United ruling, struck down a Washington statute prohibiting individuals from donating more than $5,000 to a political action committee within 21 days of an election, although the Court also upheld Washington’s requirement that the names of any individual contributing more than $25 to an initiative campaign be publicly disclosed.7
On the other hand, the U.S. Supreme Court has upheld a requirement that Washington’s Secretary of State disclose the names of those who have signed an initiative or referendum petition,8 and the Ninth Circuit has similarly upheld Washington’s requirement that the major financial supporters of an initiative campaign be disclosed through submissions to the Public Disclosure Commission.9 Similarly, in a recent en banc decision, the Ninth Circuit upheld the requirement that sponsors of a city-based initiative must be qualified electors in that city and the requirement that the name of the official proponent of the initiative appear on the each section of the initiative circulated to voters for signature.10
With these legal precepts in mind, the Subcommittee sets forth below a number of recommended reforms to Washington’s initiative and referendum process. In each case, an explanation of the specific problem is presented and then addressed by a proposed reform.
EXPANSION OF TIMELINES
2.1 Compressed Timelines Exacerbate Problems
Initiative sponsors are passionate about the subject matter, but may be untrained in drafting legislation and fail to engage critical counsel to review their proposed legislation. Some sponsors make little effort to consider the unforeseen consequences (fiscal or legal) of their proposal or whether it conflicts with existing law. Moreover, the text of the proposed initiative is frozen and unchangeable very early in the process, leading to some poorly drafted, confusing, or unconstitutional initiatives being put on the ballot.11 Finally, initiative sponsors must raise significant sums of money before beginning the petition process in order to assure that enough signatures are gathered to make the ballot.12 The short timelines imposed by Washington law exacerbate these problems.
Under current Washington law, initiatives to the people must be filed within ten months prior to the next state general election.13 The signature petition sheets must be submitted not less than four months before the general election.14 That gives an initiative sponsor less than six months to gather more than approximately 300,000 signatures (usually from early January to early July).15
An initiative to the legislature must be filed within ten months prior to the next regular session of the legislature, and the signature petition sheets must be submitted not less than 10 days before the session (usually from early March to late December).16 A referendum may be filed any time after the legislature has passed the act that the sponsor wants to be referred to the ballot; however, signature petition sheets (with more than 123,186 signatures) must be submitted within 90 days after the adjournment of the legislative session at which the act was passed.17
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