Opponents of phasing out odd year elections in Washington are making many bogus claims

This past week, the Wash­ing­ton State Leg­is­la­ture’s House State Gov­ern­ment & Trib­al Rela­tions Com­mit­tee heard pub­lic tes­ti­mo­ny on a bill that would phase out elec­tions in odd-num­bered years, one of NPI’s top elec­toral reform priorities.

HB 2529, intro­duced last week, is prime spon­sored by the com­mit­tee’s chair Mia Gregerson and co-spon­sored by Rep­re­sen­ta­tives Enten­man, Fey, Wylie, Mead, Peter­son, Thai, Ramos, Hud­gins, Tar­leton, and Frame.

Although it had to com­pete with Don­ald Trump’s removal tri­al, the hear­ing nev­er­the­less drew great inter­est from the mass media. The Spokesman-Review’s Jim Cam­den cov­ered it, as did The Asso­ci­at­ed Press’ Rachel La Corte. Both reports excerpt­ed high­lights from my tes­ti­mo­ny in sup­port. (The remarks I pre­pared pri­or to tes­ti­fy­ing were sub­se­quent­ly pub­lished here on the Cas­ca­dia Advo­cate.)

Five pan­els par­tic­i­pat­ed in the hear­ing, offer­ing dif­fer­ing per­spec­tives on the bill. Join­ing me in tes­ti­fy­ing in sup­port were North Seat­tle Pro­gres­sives’ John Plimp­ton, Shore­line City Coun­cilmem­ber Chris Roberts, Ash­ley Sut­ton from the Wash­ing­ton Vot­ing Jus­tice Coali­tion, and Col­in Cole from More Equi­table Democ­ra­cy Action.

Tes­ti­fy­ing in oppo­si­tion were Sec­re­tary of State Kim Wyman, con artist Tim Eyman, sev­er­al rep­re­sen­ta­tives from the effort that qual­i­fied Ref­er­en­dum 88 (over­turn­ing I‑1000), and Eyman asso­ciates Michelle Dar­nell and Sid Neyeto.

Mike Hoover of the Wash­ing­ton Asso­ci­a­tion of Coun­ties and Sharon Swan­son of the Asso­ci­a­tion of Wash­ing­ton Cities also tes­ti­fied, but only to share con­cerns, rather than tak­ing an explic­it “pro” or “con” position.

The com­mit­tee also heard an in-depth pre­sen­ta­tion from Zoltan Haj­nal, a pro­fes­sor at the Uni­ver­si­ty of Cal­i­for­nia San Diego’s Depart­ment of Polit­i­cal Sci­ence, dur­ing a work ses­sion that pre­ced­ed the pub­lic hearing.

Pri­or to and dur­ing the hear­ing, oppo­nents of HB 2529 made sev­er­al bogus and dubi­ous claims about the bill. I’m going to take the oppor­tu­ni­ty to debunk three of those here in the hopes that any­one fol­low­ing the debate over this leg­is­la­tion will have an eas­i­er time draw­ing the dis­tinc­tion between legit­i­mate crit­i­cisms of the bill and attacks that sim­ply have no mer­it or log­ic whatsoever.

Here we go!

CLAIM: House Bill 2529 is uncon­sti­tu­tion­al (in the words of Lin­da Yang) or “con­sti­tu­tion­al­ly sus­pect” (in the words of the Wash­ing­ton Pol­i­cy Cen­ter’s Jason Merci­er) because it elim­i­nates state-lev­el elec­tions in odd-num­bered years, thus sab­o­tag­ing the peo­ple’s ini­tia­tive and ref­er­en­dum powers.

REALITY: This is non­sense. From state­hood until 1973, Wash­ing­ton did not hold state-lev­el elec­tions in odd-num­bered years at all. Ini­tia­tives and ref­er­en­da were con­sid­ered exclu­sive­ly dur­ing even-num­bered years from 1914 through 1972.

Was that prac­tice in vio­la­tion of the Con­sti­tu­tion? Of course not!

The Framers of the Sev­enth Amend­ment, which cre­at­ed the ini­tia­tive and ref­er­en­dum process in 1912, envi­sioned a two-year cycle for ini­tia­tives. So adop­tion of House Bill 2529 would actu­al­ly be a return to form for our state.

The Con­sti­tu­tion does not require that elec­tions be held in odd-num­bered years; it only requires them in even-num­bered years. The Leg­is­la­ture and Gov­er­nor Dan Evans came up with the idea to add state-lev­el elec­tions in odd-num­bered years in the 1970s, and they amend­ed the Revised Code of Wash­ing­ton to pro­vide for such elec­tions. Today’s Leg­is­la­ture can sim­i­lar­ly amend the Revised Code of Wash­ing­ton to elim­i­nate elec­tions in odd-num­bered years.

Oppo­nents are free to argue that HB 2529 is a bad idea (and they are). But it’s not “uncon­sti­tu­tion­al” or “con­sti­tu­tion­al­ly suspect”.

CLAIM: Just a cou­ple of hours before HB 2529 was heard in House Hear­ing Room E, State Rep­re­sen­ta­tive Andrew Barkis denounced the bill at a media avail­abil­i­ty held by the House and Sen­ate Repub­li­can cau­cus­es. Barkis (R‑2nd Leg­isla­tive Dis­trict) argued that in 2019, “we had one of the high­est turnouts that we’ve seen in an off-year elec­tion in a long time… and that’s a tes­ta­ment to all the work that’s being put in to make sure peo­ple know what’s going on.”

REALITY: First of all, there’s no such thing as an “off year” elec­tion.… every elec­tion mat­ters. That term needs to be con­signed to the scrap heap.

If your posi­tion is that elec­tions ought to con­tin­ue being held in odd-num­bered years, then lead by exam­ple and stop call­ing them “off year elec­tions” because it sug­gests that some elec­tions are irrel­e­vant and do not matter.

(For future ref­er­ence, Rep­re­sen­ta­tive Barkis, we use the term local elec­tion year.)

Sec­ond, the turnout in the 2019 gen­er­al elec­tion was the sev­enth-worst in state his­to­ry. That’s right… the sev­enth worst. 2019 cer­tain­ly com­pares favor­ably to 2017 and 2015, when we set records for the worst gen­er­al elec­tion turnout in state his­to­ry dur­ing two con­sec­u­tive local elec­tion cycles. But it is def­i­nite­ly not the high­est turnout in an odd-year that we have seen a long time. Turnout was high­er in 2011, 2009, 2007, and 2005. It was about the same in 2013.

Here’s a chart of our ten worst gen­er­al elec­tion turnouts from 1936-present.

Top Ten Worst Gen­er­al Elec­tion Turnouts in Wash­ing­ton State History

All of the worst turnouts are with­in the last fifty years… since we start­ed hold­ing elec­tions in odd-num­bered years… and they’re all in odd-num­bered years.

CLAIM: At the same media avail­abil­i­ty, Barkis also argued that con­sid­er­ing statewide ini­tia­tives and ref­er­en­da in even-num­bered years would make them hard to find. Quot­ing Barkis: “If you can imag­ine that process on an elec­tion year like it is this year, when you have the pres­i­den­tial and all.. and every­thing’s on the bal­lot, the amount of ini­tia­tives and ref­er­en­da get­ting lost with­in the con­text of that bal­lot… I think that’s a sup­pres­sion­ary tac­tic in some ways.”

REALITY: This might take the cake for the sil­li­est crit­i­cism of this leg­is­la­tion I’ve heard. There is no dan­ger of ini­tia­tives and ref­er­en­da “get­ting lost” on a pres­i­den­tial or midterm bal­lot. State law actu­al­ly requires that state-lev­el bal­lot mea­sures be list­ed first, above all posi­tions for elect­ed office, even Pres­i­dent of the Unit­ed States. There is addi­tion­al­ly a statute that pre­scribes in what order the dif­fer­ent types of bal­lot mea­sures must be list­ed (RCW 29A.72.290).

Here is an exam­ple bal­lot from 2016, the last pres­i­den­tial cycle, which shows the statewide mea­sures promi­nent­ly fea­tured at the top of the ballot:

Fur­ther­more, media cov­er­age of statewide bal­lot mea­sure bat­tles tends to be  robust and exten­sive no mat­ter the year. Con­trary to Barkis’ state­ment, the evi­dence shows that more vot­ers are involved and engaged in bal­lot mea­sure bat­tles held in even-num­bered years as opposed to odd-num­bered ones.

Did I‑1639 (gun safe­ty) or I‑1631 (pol­lu­tion tax) get lost in the con­text of the 2018 midterm bal­lot? Of course not. Did I‑1433 (min­i­mum wage) or I‑1491 (extreme risk pro­tec­tion orders) get lost in the con­text of the 2016 pres­i­den­tial bal­lot? No! In fact, all of those mea­sures received far more votes, for and against, than any mea­sure con­sid­ered in any recent odd-num­bered year election.

Here are the raw vote counts on Ini­tia­tive 1639 from 2018 and Ini­tia­tive 976 from 2019 for com­par­i­son. Both ini­tia­tives were/are con­tro­ver­sial and have been assailed as uncon­sti­tu­tion­al by their opponents.

As we can see, far more vot­ers weighed in on I‑1639 than on I‑976.

Ini­tia­tive 1639, 2018 (Gun safety)

Elec­tion Turnout: 71.83% (3,133,462 of 4,362,459 voters)
Votes In Favor: 1,839,475
Votes Opposed: 1,259,681
Total Votes on Mea­sure: 3,099,156

Ini­tia­tive 976, 2019 (Gut­ting mul­ti­modal trans­porta­tion infrastructure)

Elec­tion Turnout: 45.19% (2,035,401 of 4,503,871 voters)
Votes In Favor: 1,055,749
Votes Opposed: 936,751
Total Votes on Mea­sure: 1,992,500

The bot­tom line:

1,106,656 more vot­ers weighed in on I‑1639 than I‑976.

1.1 mil­lion!

Again, here we have two con­tro­ver­sial statewide ini­tia­tive mea­sures that each received ample media cov­er­age. One received over three mil­lion votes for and against out of a pos­si­ble 4.36 mil­lion votes; the oth­er received less than two mil­lion out of 4.5 mil­lion pos­si­ble votes.… because it appeared on a bal­lot in an odd-num­bered year, when many Wash­ing­to­ni­ans decline to participate.

We could run com­par­isons on any num­ber of oth­er con­tro­ver­sial ini­tia­tives and find the same thing. Ini­tia­tives that appear on the bal­lot in even-num­bered years are con­sid­ered and vot­ed on by more vot­ers than in odd-num­bered years.

Rep­re­sen­ta­tive Barkis is wrong. Statewide ini­tia­tives do not get lost in even-num­bered years. They get more atten­tion and more votes. That’s a good thing.

At NPI, we believe that laws should be made by the many, not a few.

When a small num­ber of vot­ers or when an unrep­re­sen­ta­tive elect­ed body are mak­ing the laws that we all must live by, that is not democracy.

Accord­ing­ly, the thresh­old for pas­sage of bills in the Leg­is­la­ture is an absolute major­i­ty, per Arti­cle II, Sec­tion 22 of the Wash­ing­ton State Constitution.

There is no sim­i­lar min­i­mum turnout thresh­old for ini­tia­tives, however.

At the hear­ing last Wednes­day, I rhetor­i­cal­ly asked the rep­re­sen­ta­tives who sit on the State Gov­ern­ment Com­mit­tee if they think it’s accept­able that laws can be made by a tiny frac­tion of the elec­torate. For exam­ple, if we had statewide turnout of just 10%, then 5.01% of reg­is­tered vot­ers could vote for an ini­tia­tive and it would pass. Thank­ful­ly, we have nev­er had statewide turnout that low.

This morn­ing, Spokesman-Review colum­nist Sue Lani Mad­sen took note of my tes­ti­mo­ny, opin­ing that con­sol­i­dat­ing elec­tions in even years would under­mine, not empow­er, vot­ers. Towards the end of her col­umn, she writes:

Andrew Vil­leneuve, of the North­west Pro­gres­sive Insti­tute, tes­ti­fied in sup­port of HB 2529.

He took issue with say­ing Ini­tia­tive 976, which capped the cost of car tabs at $30 [NPI edi­to­r­i­al com­ment: not true; as I‑976 would only low­er vehi­cle fees to $43.25 if ful­ly imple­ment­ed], passed with 53% sup­port, since a major­i­ty of vot­ers statewide chose not to par­tic­i­pate at all. By not par­tic­i­pat­ing, 45% [NPI edi­to­r­i­al com­ment:  actu­al­ly, 54.81%] of state vot­ers vot­ed “I don’t care,” and I‑976 received active sup­port from less than 25% of all reg­is­tered vot­ers to win.

On the oth­er hand, even-year elec­tions do not guar­an­tee win­ning ini­tia­tives earn sup­port from 50% of all reg­is­tered voters.

In 2016, only two out of six met that more exact­ing stan­dard and none of the four ini­tia­tives on the bal­lot in 2018 did so. Pret­ty sure Vil­leneuve isn’t going to argue we should ignore the results of the vote on Ini­tia­tive 1433, which raised the min­i­mum wage, or Ini­tia­tive 1639, which imposed more reg­u­la­tions on firearms.

I’m not argu­ing that we should ignore the results of any statewide ini­tia­tives, Sue, even those passed by a sub­ma­jor­i­ty of vot­ers.

I’m argu­ing that we should com­mit our­selves to fig­ur­ing out how to achieve fuller par­tic­i­pa­tion in our elec­tions. I’m argu­ing that we should all be con­cerned that there is no min­i­mum turnout thresh­old for statewide bal­lot mea­sures at all.

And by “statewide bal­lot mea­sures”, I don’t just mean ini­tia­tives and ref­er­en­da, but con­sti­tu­tion­al amend­ments as well. If the Leg­is­la­ture sub­mits a change to our plan of gov­ern­ment in an odd-num­bered year, its fate could be deter­mined by a rel­a­tive­ly small num­ber of vot­ers in a bad turnout year like 2015 or 2017.

Should statewide mea­sures be required to pass by an absolute major­i­ty like bills do? I don’t think so. As Sue argues, that would be a pret­ty exact­ing standard.

But if we’re going to keep hold­ing elec­tions in odd-num­bered years, then there ought to be some min­i­mum turnout thresh­old. Turnout in even num­bered years, by the way, is always above fifty per­cent in Wash­ing­ton, going back decades.

NPI’s view is that we should at least have — or require — major­i­ty turnout.

In oth­er words, a major­i­ty of the state’s reg­is­tered vot­ers should be weigh­ing in on an ini­tia­tive, ref­er­en­dum, or con­sti­tu­tion­al amend­ment for it to be eli­gi­ble for pas­sage. Mea­sures would not need to receive the affir­ma­tive votes of an absolute major­i­ty like a bill in the Leg­is­la­ture would, but a major­i­ty of vot­ers would have to ren­der an opin­ion, as they con­sis­tent­ly do on mea­sures in even-num­bered years.

This change would, of course, require a con­sti­tu­tion­al amend­ment, unlike Mia Gre­gor­son­’s HB 2529, which only changes state law.

Inci­den­tal­ly, there are some bal­lot mea­sures that already do require a min­i­mum turnout to pass: Bond propo­si­tions at the local lev­el.

The Con­sti­tu­tion requires these propo­si­tions to get an affir­ma­tive six­ty per­cent vote at an elec­tion with a min­i­mum of forty per­cent turnout (the sixty/forty rule).

Democ­rats pro­posed relax­ing these require­ments last ses­sion; Repub­li­cans object­ed and nixed the pro­pos­al, which required a two-thirds vote.

Repub­li­cans also almost uni­form­ly vot­ed against relax­ing the sixty/forty rule for school levies in 2007, but they lost and that con­sti­tu­tion­al amend­ment passed.

Clear­ly, Repub­li­cans are fine with the idea of min­i­mum turnout require­ments for local bal­lot mea­sures. So, how about a con­sti­tu­tion­al amend­ment to estab­lish a min­i­mum turnout thresh­old for statewide bal­lot measures?

Such an amend­ment would not solve all the prob­lems that HB 2529 is attempt­ing to address, but it would at least tack­le one of those prob­lems, which is in our view is per­haps the biggest prob­lem result­ing from our switch to hold­ing state-lev­el elec­tions every year instead of every two years.

I’d love to hear oppo­nents of this bill, like Andrew Barkis and Kim Wyman, offer some ideas of their own, instead of mere­ly dish­ing out criticism.

How would you boost turnout in odd-num­bered years if you want to keep elec­tions in those years? How would you ensure laws are not being made by small num­bers of vot­ers? We’ll glad­ly offer you space here on the Cas­ca­dia Advo­cate to dis­cuss any answers to those ques­tions that you’d care to share.