Another one of NPI’s principal 2020 legislative priorities has become a law.
Governor Jay Inslee today signed ESSB 5395, prime sponsored by Senator Claire Wilson and championed by Representative Monica Stonier in the House.
The bill sensibly requires that all Washington public schools teach age-appropriate comprehensive sexual health education (CSHE), although it allows parents to opt their children out of receiving CSHE instruction and it keeps school districts in charge of making decisions about the curriculum that is to be taught.
The bill passed the Legislature on a set of party line votes, with Democrats in strong support and Republicans fervently opposed.
It was arguably the most divisive bill considered during the session.
House Republicans tried to destroy the legislation by filing hundreds of amendments against it; their gambit failed when House Speaker Laurie Jinkins scheduled a marathon floor session that ran until 2 AM to ensure the bill would get a vote.
Republicans have relied heavily on misinformation and dishonest talking points to make a case against the bill. They have falsely argued, for example, that the bill requires kindergartners to be taught about sexual intercourse (it doesn’t). They have argued that the bill promotes pornography (it doesn’t). They have even hyperbolically claimed that CSHE will rob children of their innocence (it won’t).
Following passage of the bill, Republicans (the state party, the House Republicans, and the Senate Republicans) all called for a gubernatorial veto, using the social media hashtag #ListenToThePeople.
But listening to the people is exactly what Inslee did by signing the bill.
Late last year, NPI asked a large sampling of Washington voters (nine hundred!) about their views on the legislation. We found 67% in support of the bill — more than two thirds — with about half, 49%, in strong support of comprehensive sexual health education. The opposition clocked in at just 22%.
That’s compelling evidence that Washingtonians support ESSB 5395.
The only evidence Republicans have produced to date that the people are on their side is anecdotal or unscientific. For example, Republicans have cited parent responses to OSPI surveys about comprehensive sexual health education.
But what they haven’t admitted is that right wing groups opposed to CSHE mobilized right wing parents to fill out those surveys. The survey takers were self-selected and not representative of the state’s voting population.
Republicans have also circulated photos of crowds massed on the steps of the Legislative Building in opposition to the bill as proof as “the people” oppose it.
Well, we have photos of crowds on those same steps who support the bill.
And, oh, look: The people in this photo are pretty much all young people… the people who this bill primarily affects!
When people hold passionate views about an issue, it’s not hard to pack a hearing room or fill the Capitol steps with people. But as I said earlier, such assemblies don’t necessarily reflect the views of the voting public as a whole.
Republicans seem utterly convinced that with this bill, they have found a wedge issue that they can use against Democrats this summer and autumn in the 2020 presidential elections. And they plan on going beyond merely using it as fodder for attack mailers in legislative races. The Washington State Republican Party, headed by Trump apologist Caleb Heimlich, has committed itself to organizing a referendum drive, which, if successful, would force a statewide vote on the bill.
Ironically, for public health reasons, Republicans cannot collect signatures against this public health legislation using the time-tested practices of putting petitions outside of church services or stationing paid signature gatherers outside of Walmart entrances. Public gatherings are forbidden due to the coronavirus pandemic, and will likely remain prohibited through the duration of the timeframe of the signature drive, which must be completed by June 12th, 2020.
It is the Constitution that spells out the timeframe for a referendum drive (ninety days) and that timeframe cannot be altered, not even during times of emergency.
State law does not allow electronic signature gathering (which is good, because that would make the problem of signature fraud much, much worse) and Secretary of State Kim Wyman has said she cannot accept electronic copies of petitions, either, not even if the electronic copies are scans of signatures on printed petitions.
Wyman has publicly suggested that referendum backers distribute petitions electronically to supporters so they can ostensibly be printed at home, signed there, and provided to sponsors through the United States Postal Service.
But state law explicitly requires petitions to be printed on EDP-sized paper or bigger, and very few people have printers at home that can handle this size.
The person proposing the measure shall print blank petitions upon single sheets of paper of good writing quality (including but not limited to newsprint) not less than eleven inches in width and not less than fourteen inches in length. Each petition at the time of circulating, signing, and filing with the secretary of state must consist of not more than one sheet with numbered lines for not more than twenty signatures, with the prescribed warning and title, be in the form required by RCW 29A.72.110, 29A.72.120, or 29A.72.130, and have a readable, full, true, and correct copy of the proposed measure printed on the reverse side of the petition.
Interestingly, RCW 29A.72.170 (which is a subsequent provision later on the same chapter) does not mention incorrect paper size as one of the grounds for refusal of a petition by the Secretary of State. The Supreme Court in 2018 turned back a legal challenge to Initiative 1639 that contended the petitions needed to be rejected because they were improperly formatted.
Nevertheless, Republicans would be taking a risk if they took up the print at home idea. The right wing has previously tried to challenge the submission of ballot measure signatures on form grounds, and they’d be setting themselves up for a potential legal challenge if they openly disregarded RCW 29A.72.100.
The Attorney General’s office, as required by law, has already formulated the ballot title for their referendum. It is as follows:
The legislature passed Engrossed Substitute Senate Bill 5395 concerning comprehensive sexual health education [and voters have filed a sufficient referendum petition on this act].
This bill would require school districts to provide comprehensive age-appropriate sexual health education, as defined, for all students, consistent with state standards, and excuse students if their parents request.
Should this measure be:
[ ] Approved
[ ] Rejected
Because Referendum 90 is a referendum, the organizers were not able to go “ballot title shopping” like many initiative sponsors (we’re looking at you, Tim Eyman) do. “Ballot title shopping” entails submitting multiple drafts with slightly different provisions in an attempt to obtain favorable ballot title wording that polls well.
Since a referendum is a proposed vote on a bill that has already passed the Legislature, it isn’t possible to go shopping like it would be with an initiative. Titles can be challenged through Thurston County Superior Court, however.
NPI stands ready to defend ESSB 5395 should the right wing force a statewide vote on it. We believe this legislation is necessary and thoughtfully-written. It is telling that most of the right wing’s objections to it are based on straw men arguments. Our research strongly suggests that most Washingtonians feel very differently about this bill than the Republican Party’s base does.
When 2020 ends, we are optimistic that ESSB 5395 will still be on the books.