On Friday, supporters of this year’s initiatives—the four on ballot and the three previously approved by the Legislature—received quite a shock when reports for the first time emerged that the Washington Supreme Court was about to issue its preliminary ruling in three cases- two of which could ultimately result in the initiatives’ invalidation. It soon became clear that Attorney General Bob Ferguson—who is currently running for governor—had allowed the litigation in those two cases to move forward without informing any interested parties. From Representative Jim Walsh, who sponsored the Olympia-approved initiatives, to Brian Heywood, who’s Let’s Go Washington was decisive in achieving their ballot access, crucial stakeholders were glaringly—again, shockingly—left out of the loop.
The Court kept the initiatives alive, but for the Attorney General to allow the process to have gone this long without informing initiative supporters is political malpractice of the highest order. It would be an understatement simply to call this undemocratic. It is, in fact (if not in the strictest, technical legal sense) a usurpation of one of the people’s most prized instruments of self-governance.
“Initiatives.” “Propositions.” “Questions.” “Measures.” “Referenda.” “Ballot Bonanzas.” “Pollingpaloozas.” “Good ol’ Fashion Votin’ Time(!).” The nomenclature and a few of the features vary, but the core concept remains—every so often (though in California very often) the public will bypass the state or local legislatures and offer its collective—and binding—voice on proposed statutory or constitutional amendments. In Switzerland, where the practice is nationalized, they call it “direct democracy.” We might as well call it that here, too. Stateside, there are sometimes technicalities to bookend the people’s firsthand dips into the legislative process. In some states, lawmakers have (or are now trying to erect) all sorts of cumbersome barriers to initiative access. Elsewhere, lawmakers can offer alternatives to run alongside the initiatives that have qualified for the ballot. Washington is one, and further requires that the Legislature’s alternative “deal[] with the same subject” as the original—whatever that means.
Washington’s process is about as purely democratic as it gets. Its Constitution reserve[s]” to the people (actually, the people “themselves” reserve) “the power to propose bills, law, and to enact or reject the same at the polls, independent of the legislature,” though lawmakers Olympia may adopt balloted measures at their discretion as the people’s representatives. Opponents of the initiatives, instead of working to persuade their fellow Washingtonians, in a last-ditch effort turned to so-called “lawfare” in an attempt merely to prevent them from ever having a say.
Thankfully, the Court unanimously rejected the motion for an injunction on the Secretary of State’s signature-verification process for I-2066. An opposite ruling could conceivably have snowballed into a broader, existential threat against the other initiatives too. Still, without even a single word of warning, the voters of Washington were a hair’s breadth from losing a core constitutional right. Not just in this case, too. Lawfare often is designed broadly enough to seek to chill or outright stop future exercises of popular sovereignty and other core constitutional functions. Here, Plaintiff Defend Washington went after the signatures instead of the contents of the initiatives themselves, with the obvious hopes that it would nip in the bud future such efforts as well.
Attorney General Ferguson, meanwhile, has responded to criticism by pointing to several instances at which his staff allegedly “revealed” the existence of these suits. The problem? Legislative staff briefings are usually confidential and a presentation at a meeting of state-aligned attorneys a few weeks before the court ruled in the cases is really not the same thing a serving necessary parties in a lawsuit. No, Ferguson cannot pretend that breadcrumbs make a whole loaf. His was clearly an effort to obscure the actual substance of the lawsuit, to ensure it proceeded without initiative sponsors being understandably loudly involved. In typical statist fashion, Ferguson hoped to sink the initiatives through back-channel maneuvers instead of letting them on the ballot.
Direct democracy is in Washington’s—and Washingtonians’—DNA. It has been a pillar of our constitutional order since 1912, the same year the Titanic went down. Over the past few months, opponents have labored under a tight secrecy to deny the people what the former could not do, nor what they ever even bothered to do, through popular persuasion.
Alki,
Sam Spiegelman