Sue Lani Madsen: Ferguson fails latest transparency test

It was the most significant Washington state court case you’ve never heard of, affecting one of our most consequential local news stories of 2023-2024. More than 820,000 Washington voters almost had their votes thrown out last week.

Signing an initiative petition carries the same significance as signing a ballot envelope and both are judged by the same protocol. A group calling itself Defend Washington claimed Secretary of State Steve Hobbs hadn’t gone far enough to verify signatures on the six ballot initiatives promoted in 2023 by Let’s Go Washington.

The silence from Attorney General Bob Ferguson (D) looks decidedly partisan on a story that broke late on an August Friday afternoon. He made no attempt to keep the public informed, nor did he reach out to the nonpartisan group advocating for the initiatives.

The initiative sponsor, state Rep. Jim Walsh, R-Aberdeen, hadn’t heard of it either until reporter Jerry Cornfield of the Washington State Standard called Let’s Go Washington for a comment on the Aug. 9 Supreme Court ruling.

Walsh is also chairman of the Washington State Republican Party.

A second lawsuit brought by another progressive interest group would have invalidated over a half million signatures on the recently certified Initiative 2066. That lawsuit was also dismissed. I-2066 along with the three 2023 ballot initiatives not adopted by the Legislature will appear on the November ballot.

Brian Heywood of Let’s Go Washington rejects Ferguson’s excuses for ignoring the obvious public interest. “For the last five years, Ferguson has issued a press release every three or four days, but not in this case,” Heywood said. Ferguson has publicly opposed all of the Let’s Go Washington initiatives.

Heywood called it a blatantly partisan move by Ferguson. “Defend Washington and SEIU and the WEA are using their members’ money to do voter suppression, and these are all Ferguson campaign donors,” Heywood said. “He should have recused himself. Usually I don’t attribute to malice what can be explained by incompetence but I don’t know if Bob Ferguson gets the benefit of the doubt. He’s a really smart guy, he’s a chess player as he likes to point out. The chess move I think he tried to play – just speculating – was a heads I win, tails I win move” keeping open the option to claim victory whichever way the court ruled. “All the way to the Supreme Court and we didn’t hear a whisper.”

Ferguson initially defended his handling of the case by pointing out that technically it is the responsibility of the plaintiff, Defend Washington, to notify all interested parties. In a phone call this week, Walsh said “Ferguson’s own staff acknowledges in a brief to the court that the parties have not been notified. I’m confused and disappointed the attorney general is unaware what his office is saying about it.”

In correspondence on Aug. 14, AG spokeswoman Brionna Aho provided the brief filed by Ferguson and a lengthy quote in which the brief argues that the motion should be dismissed “because Defend Washington failed to provide reasonable notice of its requests to affected persons (such as the sponsor of the initiatives” and “has not shown reasonable steps under the circumstances to give notice to persons who would be affected by the ruling” and “at a minimum, reasonable notice should require notice to the sponsor of the initiatives that the injunctive relief would exclude from the ballot.”

In a series of tweets on Aug. 13, Ferguson claims to have “briefed senior legislative staff of both parties.” Aho said legislative briefings from the AG to legislative staff occur monthly and provided a copy of an email inviting nine legislative staff members to a briefing on Feb. 20. The briefing materials included a list of 20 cases the AG’s office was working on, a brief description of each case and the status of the next court move.

A record of what was discussed was not provided. Aho stated the briefings were not privileged.

Attorney Jackson Maynard, who worked as staff for the Washington Senate for about eight years, said participants in these sessions are ordinarily warned not to speak about what they learn outside the briefing room and described it as “strange and disingenuous to say closed door confidential briefings constituted notice. Those excuses don’t hold water.”

Under the circumstances and at a minimum, Bob Ferguson could have taken the reasonable step to call Jim Walsh and ask if Let’s Go Washington would like to file a friend of the court brief in support of the case to keep the initiatives on the ballot. After all, Ferguson invited a friend of the court brief from Defend Washington when it was Walsh et al suing over a move framing ballot titles in a way designed to throw shade on initiatives he opposes.

Assuming, of course, Ferguson’s goal was to mount the best possible defense and he wasn’t secretly hoping the court would side with his campaign donors and toss all four initiatives off the November ballot. Without transparency, voters are left to speculate.

Contact Sue Lani Madsen at rulingpen@gmail.com.