Our prior blog posts on I-517 have addressed the provision adding a new anti-harassment protection for signature gatherers to law as well as a quick glance at some of the former statewide elected officials that have gone on the record in opposition of I-517.
In this post we’ll take a look at I-517’s requirement that all initiatives that receive an adequate number of signatures to qualify actually go before voters for consideration. Currently some proposals at the local level have been blocked from the ballot for various legal reasons.
For full appreciation of this issue it is important to remember the people, with few exceptions, are considered co-equals with lawmakers when it comes to the power of proposing or rejecting laws.
In fact, under Article 2, Section 1 of Washington’s Constitution, before the Legislature is granted any powers:
“The first power reserved by the people is the initiative.”
This fundamental constitutional power complements Article 1, Section 1 which proclaims:
“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.”
Despite this, state courts have found that in certain circumstances local initiative proposals, even with the required number of signatures, are not allowed to go the ballot. Section 4 of I-517 would change this:
“Any state or local initiative for which sufficient valid voter signatures are submitted within the time period required must be submitted to a vote of the people at the next election date. The people are guaranteed the right to vote on any initiative that obtains the required number of valid voter signatures in the required time frame. Government officials, both elected and unelected, must facilitate and cannot obstruct the processing of any initiative petition and must facilitate and cannot obstruct the public vote of any initiative. For local initiatives, government officials must, in all circumstances, strictly comply with the requirements of this act for any initiative regardless of its subject matter. The term ‘local legislative authority’ must be construed to include the people via local initiative regardless of the subject matter of the ballot measure. Citizens have just as much right to decide issues with local initiatives as governments do. This section may not be construed in any way to impede the right to legal review of the sufficiency of valid voter signatures or post-election legal review; however, under no circumstances may an initiative be prohibited from submission to the people for a vote if sufficient valid voter signatures are submitted.”
This language is identical to the text of SB 5347: Assuring the people’s right to vote on initiatives that submit sufficient valid voter signatures. SB 5347 was considered by the Senate this year but not approved.
Here is Tim Eyman, sponsor of I-517, discussing the need for this reform at the public hearing on SB 5347: (click here for video)
Here is Sen. Ann Rivers, prime sponsor of SB 5347, noting that if the people go through the trouble of signing an initiative proposal that otherwise would qualify for the ballot they should be heard: (click here for video)
It is important to note that the bills drafted by lawmakers generally don’t go through a pre-approval legal review before they can be acted on. The same should be true for laws proposed by the people.
At least for statewide initiatives, the state Supreme Court has made it clear:
“Preelection review of initiative measures is highly disfavored. The fundamental reason is that ‘the right of initiative is nearly as old as our constitution itself, deeply ingrained in our state’s history, and widely revered as a powerful check and balance on the other branches of government.’ Given the preeminence of the initiative right, preelection challenges to the substantive validity of initiatives are particularly disallowed. Such review, if engaged in, would involve the court in rendering advisory opinions, would violate ripeness requirements, would undermine the policy of avoiding unnecessary constitutional questions, and would constitute and unwarranted judicial meddling with the legislative process. Thus, preelection substantive challenges are not justiciable. Further, substantive preelection review could unduly infringe on the citizens’ right to freely express their views to their elected representatives.”
However, the state Supreme Court has also found that for local initiatives, some measures can be prohibited from reaching the ballot, even with the adequate number of signatures:
“’An initiative is beyond the scope of the initiative power if the initiative involves powers granted by the legislature to the governing body of a city, rather than the city itself. [A] grant of power to the city’s’ legislative authority or legislative body ‘means exclusively the mayor and city council and not the electorate.’ When the legislature enacts a general law granting authority to the legislative body (or legislative authority) of a city, that legislative body’s authority is not subject to ‘repeal, amendment, or modification by the people through the initiative or referendum process.’”
Both I-517 and SB 5347 would change this to ensure that all ballot measures that receive the adequate number of signatures go before voters for consideration. Post election legal challenges, as is the case with laws passed by lawmakers, would still be permitted.
Since citizens are not second class in nature to elected officials concerning the power to propose or reject laws, should I-517 be turned down by voters, lawmakers may want to re-consider SB 5347.
Next up for our review of I-517 is its potential impact on property rights and whether its proposed changes to state law would adversely impact the constitutional rights of businesses.
[Reposted with permission from the Washington Policy Center blog]