Thoughts on Reform of the Washington Initiative Process

Harris Meyer has an interesting piece today on Crosscut regarding Washington’s initiative process. The hook is the recently passed I-1183 regarding state liquor sales. There is a question (soon to be answered by the Supreme Court) whether the initiative runs afoul of the Constitution’s “one subject” requirement. If the Supreme Court decides that the initiative is unconstitutional, then all of the effort and money that went into the actual voting will have been wasted. Meyer asks:

To save everyone all this trouble, why doesn’t Washington require constitutional review of ballot initiatives before they go to voters, as other states do?

Meyer points out that other states, such as Florida and Massachusetts, require a form of pre-ballot review by the state courts to ensure some level of constitutional propriety before voting. But there are problems with pre-ballot review:

A major drawback is that American courts generally avoid ruling on the constitutionality of legislation until it has been passed and the issues are ripe for adjudication. For that reason, even if the Washington state Legislature passed a law mandating the Supreme Court to review ballot initiatives, the court could vacate it as unconstitutional. It might take a state constitutional amendment to establish prior judicial review, [Rep. Jamie] Pedersen [D-Seattle] said.

My totally off-the-top-of-my-head thought is that, indeed, a statute that “mandat[ed] the Supreme Court to review ballot initiatives” for constitutionality would itself be rejected by Washington courts. But that doesn’t mean lesser measures would not be possible.

First of all, there is a big difference between (a) mandating Supreme Court review and (b) permitting lower court review which could then be appealed to the Supreme Court via the regular channels. I think the courts would be more sympathetic to that system.

Second of all, while courts generally avoid reviewing laws “until it has been passed and the issues are ripe for adjudication,” that general statement applies to laws “passed” pursuant to the usual legislative process. Until a law is passed, it is unclear what form the law will take. But statutes are often reviewed by courts after they are passed but before they actually go into effect. A prime example of this is the Supreme Court’s review of the Affordable Care Act and the individual mandate (which has been passed but has yet to go into effect). There is no constitutional problem with judicial review of a law that has not yet gone into effect. So, is a ballot initiative more like a bill the legislature has yet to pass, or more like a passed bill that has yet to go into effect?

To my mind, a pre-vote initiative is more like a passed bill that has yet to go into effect. At the point the initiative appears on the ballot, there is no question what it is going to say. There is no possibility for amendments or revisions. The initiative says what it says. The same cannot be said for a bill prior to its passage (which is one reason for courts to avoid pre-passage review). Moreover, the imminent vote and the potential for passage may well be sufficient to satisfy general “case or controversy” or “ripeness” requirements. Although, I suppose the courts could adopt a prudential rule of abstention to avoid deciding constitutional questions in such situations unless they absolutely have to – that is, unless the initiative passes. (Side note: The same “uncertainty” exists for passed legislation before it goes into effect, since a subsequent legislature could always repeal the bill, thereby negating the need for judicial review.) In any event, like a passed-but-not-yet-effective bill, an initiative could easily be subjected to a facial constitutional challenge, while as-applied challenges would have to wait until the initiative actually passed.

Third, even if there are general constitutional concerns with pre-passage judicial review of initiatives, I wonder if those concerns could be side-stepped with a legislative solution. For example, what if the legislature passed the following law:

(1) A proposed initiative shall not appear on the ballot if it embraces more than one subject.
(2) The phrase “embraces more than one subject” shall have the same meaning as that which is employed by the Washington Constitution, and is intended to incorporate Supreme Court interpretations of the phrase at the time of enactment and into the future.

I suspect that such a law would permit certain persons to challenge an initiative set to appear on the ballot before all the electioneering and voting takes place. But who? Perhaps the law could prescribe a limited group of persons who would have a cause of action. Or perhaps just regular old standing doctrine could serve as the gatekeeper. Or maybe the cause of action could be limited to the Attorney General. I don’t know. But I think there’s got to be something we can do to permit limited judicial review of initiatives prior to all the expense of the voting process, and so we’re not stuck in this post-passage period of uncertainty where stakeholders are unable to plan for the future.

[Update 3:55pm — Harris Meyer has responded to a comment I left on the article (though not, I think, to this lengthier post): “But generally Washington state courts still won’t consider a pre-vote review because of the ripeness issue, as well as other issues I didn’t get into such as separation of powers and conservation of judicial resources.”

I was hoping that perhaps my little statutory requirement for inclusion on the ballot might force the courts’ hands on the ripeness issue, but it wouldn’t do anything about prudential doctrines like “conservation of judicial resources.” However, unless a court’s objection has some basis in the state constitution, there’s no reason the legislature could not simply overrule any “prudential” objections to pre-passage review of initiatives.

In any event, it’s at least worth a shot, if people actually care about this, to see what can get done when the legislature exercises its full power to provide jurisdiction for the state courts to hear these sorts of challenges.]

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