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 III of this continuing series.
3.1 Ballot Measure Drafting Problems
Initiative language can be poorly drafted, creating difficult and sometimes expensive interpretation and implementation problems if the initiative is passed. In addition, Washington voters have, with some frequency, adopted initiatives that are facially invalid because they fail to meet basic requirements of the Washington Constitution and legislative draftsmanship, such as the requirement that legislation address a single subject1 and the requirement that the full text of an amended statute be set forth in the legislation.2 Examples over the last fifteen years include:
• I-1240, the Charter Schools initiative, which, as discussed above, was passed by Washington voters in the November 2012 election, but was struck down the by the Washington Supreme Court as a facial violation of the state Constitution on September 14, 2015.3
• Initiative 1053, adopted by the voters in 2010, was struck down by the Washington Supreme Court in 2013 because it would have established a super-majority requirement to pass tax legislation, violating the Washington constitutional provision requiring that legislation be passed by a simple majority of both houses of the legislature.4
• Initiative 776, which sought to limit the motor vehicle excise tax, adopted in the 2002 election but struck down by the Washington Supreme Court in 2006 because it unconstitutionally impaired bonds issued by Sound Transit which relied on MVET revenues for repayment.5
• Initiative 747, a measure adopted in 2001 which sought to limit property tax increases to one percent per year, was struck down by the Washington Supreme Court in 2007 because it violated the Washington Constitution’s requirements that legislation must accurately describe the law it sought to amend and failed to set forth at full length the law to be amended.6
• Initiative 722, a tax limitation measure adopted by the voters in 2000 was struck down by the Washington Supreme Court in 2001 because it violated the Washington Constitution’s single subject rule.7
• Initiative 695, the $30 car tab initiative adopted by voters in 1999, was struck down by the Washington Supreme Court in 2001 on the grounds that it violated the single subject rule, the subject-
in-title rule, the requirement that all amended statutes be set forth in full in the legislation, and by by-passing the constitutional requirement that a referendum be signed by four percent of the voters before it is subject to a vote of the people by requiring all tax increases to be subject to an automatic public vote.8
In many of these cases, initiative sponsors violated the most basic requirements of statutory drafting. In other cases, the initiative on its face violated constitutional requirements such as the requirement that legislation be passed by a simple majority in each house.
Despite fundamental and fatal flaws, in each case, these ballot propositions went through the entire initiative process, successfully collecting the required number of signatures and receiving approval of the majority of voters, only to be struck down by the court because of basic failures in drafting or understanding of the Washington Constitution. The problem persists, in substantial part, because the Washington courts have concluded they lack the power to conduct pre-election review of initiatives except for a very narrow class of procedural challenges.9
This repeated pattern—voters adopting fundamentally flawed ballot propositions only to be struck down by the courts because of their legal flaws—creates a number of serious problems for the administration of justice in our state. Perhaps most significantly, as demonstrated by the sometimes intemperate reaction to the Court’s recent charter schools decision, discussed above, judicial intervention in these cases undermines public trust in the judiciary by creating the impression that the courts are acting politically to thwart the will of the voters.10 In addition, significant resources are wasted on these flawed initiatives, both by initiative sponsors, who must expend substantial effort to obtain sufficient signatures and to conduct a ballot campaign, and by the state, which must expend substantial resources to conduct elections, distribute ballot pamphlets, and carry out other duties related to elections in which initiatives are on the ballot. Further, even when ballot initiatives successfully withstand facial challenges, the litigation can lead to delay and uncertainty in the implementation of those initiatives.11
In addition to the charter school case, League of Women Voters v. State, discussed in Part II, the problem is illustrated by a second very recent case, this one involving Initiative 1366, which would impose a one percent reduction in sales tax unless the legislature authorizes a public vote on a constitutional amendment to approve a two-thirds voting requirement for tax measures. After I-1366 received sufficient signatures to qualify for the ballot, opponents filed a pre-election challenge to the initiative in King County Superior Court. The Court concluded that the initiative suffers from a variety of constitutional flaws and therefore is unlikely to be implemented even if approved by voters. The court nonetheless declined to enjoin placing the initiative on the ballot.12 The Washington Supreme Court subsequently denied a petition for direct review of the Superior Court’s decision, although the Court has not yet explained its reasoning.13
The Superior Court’s reluctance to intervene was driven, in part, by the Washington Supreme Court’s passing reference to First Amendment rights in the context of ballot propositions that are passed but later struck down.14 The Subcommittee believes, however, that the limited pre-election review we advocate would not impinge on First Amendment rights because there is no meaningful distinction for First Amendment purposes between initiatives that are properly drafted within constitutional rules such as the single-subject rule, and those that are not. In addition, where initiative proponents attempt to undertake action that is beyond the power of the Washington initiative, such as amendments to the state constitution, they retain multiple avenues for expressing their preferences to the legislature, ranging from organized letter or email campaigns to petition campaigns.
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