Commentary: State court should protect the initiative process

By Tim Eyman

Initiative 940 qualified, regarding state policy on shootings involving law enforcement officers.

The state constitution gives legislators three ways — and only three ways — to respond to an initiative to the Legislature: It can

Reject the initiative, which means the voters vote on the initiative as written;

Adopt the initiative as written “without change or amendment;” or

Propose an alternative and let voters choose between the initiative as written and the Legislature’s preferred alternative.

Which of those three comes the closest to what the 2018 Legislature did with regard to Initiative 940? Let’s take a look at each one.

Did the Legislature reject it? No. If that’s what the Legislature had done, then we’d be voting on Initiative 940 as written in November.

Did the Legislature adopt the initiative as written “without change or amendment”? No. Not only did the Legislature’s alternative bill (HB 3003) explicitly identify that it “amends” I-940, it changes substantive portions of I-940. According to the Legislature, I-940 as written becomes the law on June 7. Twenty-four hours later, that new law is amended. The amendments will take effect that day because before agreeing to enact I-940 “without change or amendment,” the Legislature first agreed to amend it.

Did the Legislature propose an alternative? The Legislature clearly could not accept many of the substantive policies in I-940. While the Legislature was willing to accept some modifications to state law, it did not want to see Washington law become exactly as proposed in I-940.

Instead, it wanted to see a different set of policies enacted into law – HB 3003. Thus, the Legislature elected to pass a bill dealing with the same subject matter, but one with substantively different policies. Under the state constitution, the Legislature is given an option to do precisely what it did: propose an alternative. But by doing so it triggers the constitutional requirement that both the initiative and the Legislature’s alternative be presented to the people for a vote.

Of the three constitutional actions the Legislature may take, only one fits the actions taken in the 2018 session. The Legislature did not reject I-940 and it did not adopt I-940 without change or amendment. It proposed an alternative to I-940.

Only by allowing the voters to choose between I-940 as written and the Legislature’s preferred alternative gives full deference to both sources of legislative power in the state: the people, through the initiative process, and the Legislature, which has the power to propose an alternative. Any other outcome rejects one or the other source of legislative power.

In the case of Eyman vs. Wyman, I’m asking Thurston County Judge Christine Schaller to order Secretary of State Kim Wyman to put both measures on the November ballot and let the voters decide. To allow this dangerous precedent to stand will create in the Legislature a veto power over every initiative.

The Legislature’s role on initiatives is constrained by the constitution, and it may only take one of three actions. Lawmakers manufactured an unprecedented fourth action: they adopted I-940 only after agreeing to amend it and then blocked the people from voting on both. Solicitor General Noah Purcell explicitly told legislators that their proposed fourth option was unconstitutional, calling it “too cute by half.”

The Legislature took away the voters’ right to vote. Rather than letting the voters choose between the two, lawmakers decided for us. That’s not how it works.

The state constitution guarantees that it shall be the people, and not the politicians, who get to decide which version becomes law. I hope Judge Schaller sides with the constitution. If she doesn’t, then the Legislature will be free to sabotage any future initiative to the legislature by adopting it, changing it, and then blocking a public vote on it. That can’t be allowed to stand.

Tim Eyman is an initiative activist who lives in Mukilteo. Contact him at 425-493-9127 or tim_eyman@comcast.net.