Initiative 960: Unconstitutional, Unfair, Unsound (Part IV)

Welcome to Part IV of our pre-election special series on Initiative 960 (Unconstitutional, Unfair, Unsound). This is the final installment.

Each post in this series will briefly focus on a different conflict between the language of Tim Eyman's right wing scheme to paralyze Washington and our state's constitution, which trumps any statute (whether it be a citizen initiative or a bill passed out of the Legislature) when there is a contradiction.

On Wednesday, we looked at the the main intent of I-960: to give control over important budgeting decisions over to a minority of elected lawmakers. On Thursday and Friday, we reviewed another constitutional infringement: I-960's attempt to create a new type of ballot measure.

Today we'll overview a third (and related) instance where I-960's "advisory vote" scheme runs afoul of the Constitution.

I explained on Thursday how this scheme is supposed to work:

In the hopes of stirring up voter frustration with the Legislature and state government, I-960's sponsors devised a gimmick to force public votes on revenue increases that do make it through the statehouse with a supermajority. If the revenue increase isn't referred to the people by the Legislature, it automatically goes on the ballot anyway.

But there's a catch: the advisory votes are non-binding, which means they have no legal effect. They would just be meaningless polls on our ballots.

Not only is this scheme a waste of money, but it is also a trick: many voters will undoubtedly be fooled into thinking their votes would actually have an impact, when that won't be the case. It's a clever gimmick: too clever to be constitutional.

When the initiative and referendum were established in the state Constitution decades ago, the rules governing each were plainly written. Referenda may only be ordered by petition or by the Legislature, and referenda must be binding, as Parts 2 and 3 of this series have documented.

The authors of Article II - who intended the initiative and referendum to be a safeguard for our state, not a replacement for our legislative process - also used a checks and balances approach in the hopes of preventing abuse: they exempted certain bills from referendum.

The following table explains the meaning of the language (Fundamental Law) excerpts the actual text in the relevant section of the state Constitution, and highlights where Eyman's proposal is in conflict (As Illegally Amended by I-960).

Fundamental Law	The State Constitution	As Illegally Amended
Referendum power exempts (1) acts raising state revenue and (2) acts containing an emergency clause	Referendum power exempts "such laws as may be necessary for the immediate preservation of the public peace, health or safety" or "support of the state government and its existing public institutions." Ref: Article II, Section 1(b)- and see Farris v. Munro, 99 Wn.2d 326, 662 P.2d 821 (1983)	-- Expands referendum power to acts raising state revenue Ref: I-960 Text, § 5(1) -- Makes acts exempt from referendum subject to automatic non binding referendum Ref: I-960 Text § 6 -- Acts with an emergency clause are subject to non binding referendum Ref: I-960 Text § 6

Eyman and his cohorts explicitly set up their "advisory vote" scheme to require non-binding referenda on legislative acts that are exempted from referendum in the Constitution. By doing so, they turned the gimmick into a triple play of constitutional violations.

The purposeful exemption of certain legislation from referendum in Article II is neither an accident nor a weakness. It is there to prevent exploitation of the referendum power at the expense of the common good.

Washington's champions of direct democracy were perceptive: they did not want to jeopardize our quality of life or the well being of our communities. Article II prohibits a referendum on critical bills relating to the support of state government, the public peace, health, or safety.

It's known as the emergency clause.

Eyman and his friends are of the opinion that the Legislature uses it too frequently. To those who agree with that view... know that Initiative 960 doesn't make the situation any better.

Proponents of this measure may not like what the Constitution says, but they can't change it by statute. If the supreme law of our land could be changed on a whim, our democracy would be unstable and vulnerable. The Constitution, as written, protects majority rule with minority rights.

In the event that Initiative 960 passes, we'll be counting on the Constitution to protect us from Tim Eyman's right wing scheme to paralyze our government too. But a court challenge won't be necessary if we the people have the wisdom to turn down this poorly conceived initiative.

You can help prevent I-960 from ever having a chance to wreak havoc on our state and our communities by voting NO on or before next Tuesday, Nov. 6th.

Read the rest of the series: Part I | Part II | Part III