Legal challenge to R- 71 rejected on technical grounds; but concerns valid, Court says

This morning King County Superior Court Judge Julie Spector rejected a legal challenge seeking to block Referendum 71 from being placed on the ballot, determining that Washington Families Standing Together (the plaintiff) had selected the wrong venue to litigate in and that it had filed its legal challenge too soon (before certification of the referendum).

However, the Court's ruling also recognized the legitimacy of Washington Families Standing Together's charges against Secretary of State Sam Reed.

The allegations in the lawsuit are now findings of fact.

Remember, WFST's suit rests on the improper acceptance, by the Secretary of State, of two types of signatures on Referendum 71 petitions:

• Signatures of voters who were not registered to vote at the time that they signed a Referendum 71 petition
• Signatures on petitions whose circulator did not identify him or herself, and/or did not sign the declaration required by state law

The Court basically agreed with WFST on both of these points. First:

The Secretary of State concedes that he instructed his staff to accept signatures of voters who were not registered when they signed the petition. The court notes the plain language of the Washington State Constitution and the Revised Code of Washington requires voters to be registered before signing. While it may be common practice for individuals to register simultaneously with signing referendum petitions, and it may even be good policy, that does not mean that the practice is in accordance with Washington law. No Washington court has ever considered this issue, but state supreme courts in other jurisdictions have decided resoundingly against the Secretary of State's position.

And second:

Protect Marriage Washington/Intervenor also admits that their members stamped the declarations on thousands of petitions with Mr. Stickney's signature before filing the referendum petitions with the Secretary of State. Likewise, the Secretary of State concedes he has accepted more than 35,000 signatures where the signature-gatherer's declaration was either left blank or stamped en masse with Mr. Stickney's signature. In making this determination, the Secretary of State has relied on an opinion by the Attorney General issued in 2006. That opinion states that RCW 29A.72.130 requires not that the signature-gatherer actually sign the declaration, but only that the declaration be printed on the back of each petition... Based on the statute's plain language and the legislative history, this essentially renders the declaration requirement meaningless.

An additional problem with granting relief (in this case, the injunction sought by WFST) based on these concerns, Spector said, was that:

RCW 29A.72.170, however, does not require the Secretary of State to refuse to accept petitions that do not meet statutory requirements. It only limits his ability to reject petitions. In summary, under Washington case law it is unclear whether there are are any limits to the Secretary of State's discretion as long as he has chosen to accept petitions rather than reject them.

Confused? In other words, if Sam Reed decides to reject a particular petition, that decision can be challenged. But case law, according to Judge Spector, does not prescribe that the Secretary of State can be challenged if he decides to accept a petition or signatures on a petition that should be thrown out.

So Sam Reed can break the law and get away with it.

What is wrong with this picture?

It's time for reform of the initiative and referendum process. Reform has been needed for years, but previously the Legislature has capitulated after Tim Eyman showed up in a hearing room dressed in a prison outfit.

Perhaps now, legislators like Jamie Pedersen and Ed Murray will start caring about this problem, and they'll help us do something to fix it.

In the meantime, considering the Court's recognition that the foundation of Washington Families Standing Together's lawsuit is valid, the lawsuit ought to be refiled in Thurston County Superior Court immediately. These issues aren't going away... they'll come up again in the future. It would be advantageous to have them addressed in court now so we'll have a clear idea of what we need to do legislatively to strengthen the integrity of the instruments of direct democracy.