Will Referendum 71 make the ballot? Results of litigation, not Reed's office, will decide
After a month of checking (and rechecking...), Secretary of State Sam Reed's office has determined that Referendum 71 has enough valid signatures to qualify for the November ballot. But that announcement - which is not so unexpected - means little, because a lawsuit has been filed by Washington Families Standing Together challenging the acceptance of signatures which were allegedly submitted fraudulently by sponsor Larry Stickney and his collaborators.
The lawsuit, filed in King County Superior Court (see all the pleadings on this page) asks that the Secretary of State be enjoined from determining that Referendum 71 has qualified for the ballot, and that two classes of signatures be stricken from the total number of signatures accepted by the Secretary of State as valid:
- Signatures on petitions whose circulator did not identify him or herself, and/or did not sign the declaration required by state law
- Signatures of voters who were not registered to vote at the time that they signed a Referendum 71 petition
Washington Families Standing Together argues:
Referendum 71 should only be on the ballot if it has qualified based on legally valid signatures. In order to ensure that it is not put on the ballot in error, we needed to file a legal challenge at this point.We agree. For far too long, the Secretary of State has used Attorney General Rob McKenna's flawed opinion from several years ago to justify its practice of accepting petitions that lack completed declarations. Incredibly, the Attorney General's office believes that state law only requires that the declaration be printed on the petition... it doesn't have to be signed.
We have waited because we wanted to give the process a chance to work, but we did not want to wait so long as to interfere with the Secretary of State’s ability to produce election materials in a timely manner.
Washington Families Standing Together refutes this argument in its pleadings:
There can be no dispute that the Legislature, intended, at least, that the signature-gatherer write his or her name between the words "I" and "swear". The AGO supports the importance of this identification space by emphasizing the absence of a signature space and by requiring rejection of petitions that omit the declaration. If it is essential that the declaration be printed on the back of the petition, then it is equally essential that the demanded identification be provided, to tie the signature-gatherer to any misconduct, to make that connection clear to her, and to assure that she has addressed her attention to the warnings in the declaration.Reed's excuse for accepting petitions with incomplete declarations - as well as accepting signatures of voters who weren't registered to vote when they signed - is basically that, gee, we think people in this state should be able to vote on things, and our priority is to do all we can to ensure that that happens, even if that means fudging the Revised Code of Washington (RCW).
Likewise, the Secretary and the AGO ignore the declaration's explicit requirement that the signature-gatherer "swear or attest" to the truth of the statements. Even if no signature is required, this is an "oath", defined as "an affirmation and every other mode authorized by law of attesting to the truth of that which is stated." RCW 9A.72.010(2). A written statement is made under oath if it was "made on or pursuant to instructions on an official form bearing notice, authorized by law, to the effect that false statements are punishable." RCW 9A.72.010(2)(a). That is just what the Legislature required here.
This position is problematic because it makes the Secretary of State biased in favor of initative or referendum sponsors, rather than being a neutral authority that dutifully carries out the laws of the State of Washington.
It also creates a serious constitutional quandary in our view. The Secretary of State does not have the power to make law. That power belongs to the Legislature and to the people. The Legislature has decided that petitioners must attest to the veracity of the petitions they have circulated. But Sam Reed is acting as if this law is meaningless because he and his Elections Division do not like it.
Imagine if we could all simply ignore laws that we didn't like...
In short, Reed's bias shows blatant disrespect towards the spirit and the integrity of the instruments of direct democracy, which the Secretary or his staff have said on multiple occasions that they believe in protecting. We hope the courts take the opportunity to compel Reed and McKenna to carry out the law like they're supposed to and put an end to the unjust favoritism we've been witnessing.