We at CADF have written extensively about the benefits—and, at least in Washington, the core constitutional right—of direct democracy. Enshrined in the state’s constitution in 1912, courts construe the voters’ right to choose (or decline) various ballot initiatives and propositions as fundamental. That is, it is the people’s prerogative, as sovereign, one that is separate and distinct from any constitutional dictate. Put another way, the constitution merely restates the right. By no means does it create it.
It is puzzling, then, that advocates for initiatives on this November’s ballot have had to fight so hard to ensure that the people have their rightful say. A few weeks ago, in a shocking development, it emerged that anti-initiative forces had months prior requested an injunction of several statewide initiatives. Supporters of this year’s initiatives—including their sponsor—were left completely in the lurch, only learning of the action when the Washington Supreme Court, thankfully (and properly) rejected the sinister effort.
Sinister. I do not use such a loaded adjective lightly, but is there really a better word for such cavalier schemes to deprive the people of their most sacred rights? Though proceeding in secret, at least the statewide case was filed with ample time for the courts to resolve the question before the ballots are printed. Not so in Whatcom County, where last week opponents of a local initiative to repeal a now-unpopular tax (itself enacted via ballot action) filed an injunction mere days before the County’s auditor is scheduled to print local ballots. Granting the injunction this week—effectively depriving Whatcom voters of their right to choose—the Superior Court of Whatcom County dubiously framed state law delegating lawmaking authority to county councils as somehow exclusive, missing entirely the fundamental (not to mention constitutional) character of this power, and the express words of the relevant constitutional clause (infra). Indeed, the people have a greater claim to sovereign authority than any representative body ever could. It is right there in the word: “representative.” Elected officials are merely a conduit of the public will, and at least as a principled matter must always yield to the latter, albeit within a constitutional framework (as without a constitution there is no social contract binding the people, as sovereign, to a discreet legal order). Conveniently, this principle is an express element of the Evergreen’s constitution, which clarifies that the power is reserved, not created: “That the authority hereby conferred upon the legislature shall not be construed to grant to the legislature any exclusive power of lawmaking nor in any way limit the initiative and referendum powers reserved by the people.”
Despite the gravity of this right—again, one borne of the people’s ultimate status as sovereign—lawmakers in many states continue to usurp it, with most of the South limiting ballot initiatives to those with the legislature’s imprimatur. Washington has an especially expansive direct democracy—with the small-l liberalism of its version of the so-called “Oregon System” dwarfed only by the almost limitlessness of its neighbor’s, which started the namesake trend in 1902. Simply put, there is substance to Washington’s specific version of direct democracy—one that sets it apart from most other states and more than justifies a judicial approach that widely favors the right over often uber-technical efforts to undermine it. Unfortunately, Whatcom courts did not get the memo.
I will not quibble much longer with the substance of this week’s order but feel obliged to repeat that it is an ominous development, standing as the latest harbinger of an increased tendency for initiative opponents to use lawfare, instead of persuasion, to get their way. Even the most casual observer of this year’s presidential elections has seen how the legal system has become an integral part of the political process—and mostly not in a good way. Even when a lawsuit or criminal charges are justified, the political factor makes any such move something of a third rail—apt to hurt those bringing them as much as they do those against whom they’ve been brought. This lawsuit is of the same piece. Whatever merits are to be found in the Superior Court’s ruling—and there are not many—its willingness even to entertain such an injunctive effort this close to ballot-printing is another sad sign that this growing trend is far from cresting.
Alki,
Sam Spiegelman