Voters can make laws when legislators won’t

Washington voters can take the law into their own hands and it’s perfectly legal.

Although most laws come from the Legislature, voters have ways to pass their own laws if legislators can’t or won’t address key issues. They can also cancel a law the Legislature just passed, or approve one when lawmakers ask them to.

They’ve done it repeatedly, passing laws on abortion, assisted suicide, commercial liquor sales, recreational marijuana, gun control and tax restrictions, to name just a few topics in recent decades. They’ve approved legislative action on same-sex marriage and domestic partnerships and temporarily blocked charter schools.

Washington has among the most open rules for initiatives and referendums in the nation. For $5, anyone can file an proposed law that could go straight to voters, or go first to legislators for their approval but on to voters if they won’t pass it.

The fee for filing a document with the Secretary of State’s office was set in 1893, before the initiative and referendum clause was added to the state Constitution, and has remained the same despite inflation and occasional efforts by lawmakers to raise it.

Once the initiative has been filed, it can’t be revised. It only can cover one issue but the broadness of an issue is sometimes a cause for litigation if it passes.

Whether a sponsor wants it to go on the ballot or be sent to the Legislature, the proposed law must first collect hundreds of thousands of signatures from registered Washington voters, who can only sign once.

The number of signatures is set by law at 8% of the ballots cast in the last gubernatorial election, so it changes every four years. Through 2020, that number is 259,622, but because some people sign who either aren’t registered to vote or sign more than one petition for the same proposal, sponsors always have to collect tens of thousands more than that minimum to have a chance of getting to the ballot or the Legislature.

Signatures are checked against the state voter records by the Secretary of State’s office.

Initiatives to the voters usually are filed at the beginning of the year they would go on the ballot and must be turned in by early July. The earlier they are filed, the longer sponsors have to gather signatures, although on rare occasions, a successful petition drive has been completed in a matter of weeks, using armies of people paid to gather signatures.

Critics of paying people to collect signatures contend it flies in the face of the original purpose of the initiative – the Progressive Era idea to counter legislators so beholden to moneyed interests that they won’t pass laws the people want. It can result in today’s moneyed interests spending millions to get legislation they wrote on the ballot and into law.

The Legislature tried to ban paying people on a per-signature basis in 1993. A federal court threw that out a year later, because the U.S. Supreme Court has said paying signature gatherers is protected as free political speech.

A voter initiative that collects the required number of signatures almost certainly makes it to the November ballot because the state Supreme Court rarely interferes before voters have a chance to weigh in. If the measure fails, there’s no point; if it passes, the court can overturn measures that try to do something unconstitutional or have multiple issues.

For the two years after it passes, the Legislature needs a two-thirds majority to amend or eliminate an initiative. After two years, it’s a simple majority.

Initiatives to the Legislature have the same requirement for the number of valid signatures, but a slightly longer time limit. They can be filed in the spring, and submitted in late December or early January ahead of the coming legislative session.

As the name suggests, they go first to the Legislature, which has three options: Pass it, and it becomes law; reject or ignore it, and it goes to voters on that year’s general election ballot; pass a revised version of the original initiative, and both go on the November ballot.

Because initiatives often contain controversial issues, the Legislature often opts to let the voters decide. In 2018, when facing an initiative that would rewrite the standards on the use of deadly force by law enforcement, lawmakers tried to find a way around their three options by passing a bill that had changes to the initiative and having it signed by the governor before they passed the initiative. No can do, said the state Supreme Court, which put the original initiative on the ballot, but not the revisions. It passed, and the Legislature mustered the super majority at the beginning of the 2019 session to pass the changes.

Referendums are ballot measures that allow voters to weigh in after the Legislature takes action. Sometimes legislators will put a clause requiring a statewide vote on a controversial bill to get the votes needed to pass it. The law doesn’t take effect unless voters approve it in November.

Demanding a referendum clause on a bill that is going to pass is often just a political tactic by opponents to claim it’s something voters should decide rather than the Legislature.

A bill that has passed can also be challenged by a referendum measure by people who think it’s a bad idea. They have to collect half as many signatures as an initiative – through 2020 that’s 129,811 – but the petitions must be filed within 90 days of the end of the session, which is when most laws from a session take effect. Because many controversial bills are delayed until the final days of the session, that’s only three months to get the referendum measure filed, petitions printed, the necessary signatures gathered and turned in.

State voters also get to express an opinion on tax increases any November after the Legislature raises an existing tax or approves a new one. Tax advisory votes provide a short description of the bill and how much revenue it’s expected to collect over 10 years, and ask whether voters think that change should be “Repealed” or “Maintained.”

Unlike initiatives and referendums, which have detailed arguments for and against in the state Voter’s Guides, Tax Advisories only have the state’s yearly cost projections and a record of which legislators voted for and against it. They also don’t usually attract campaign contributions for or against.

As the name says, they are advisory only, and the Legislature doesn’t reconsider those bills even a strong majority votes they should be repealed.