In ordinary life, people generally avoid spending lots of time and money preparing for a big change they know may not occur. But when it comes to ballot initiatives approved by Washington voters, they don’t have that option.
As soon as voters overwhelmingly passed I-1183 in November to privatize liquor sales and deregulate wine sales, a wide range of business groups started scrambling to get ready for the new law’s implementation — even though there was immediate uncertainty about it surviving a constitutional test in the courts.
Other states have a remedy for this, in the form of some type of constitutional review before initiatives are placed on the ballot. Why not Washington, which established the system for letting voters directly approve statutes exactly 100 years ago? Determining the constitutionality of an initiative before it goes on the ballot also could save sponsors and opponents a ton of money. Costco alone spent about $19 million bankrolling I-1183.
“A lot of the initiatives create a lot of uncertainty and get litigated,” said Rep. Jamie Pedersen (D-Seattle), chairman of the House judiciary committee. “As a policy matter, it would be a great idea to have prior constitutional review.”
On Thursday, the state Supreme Court will hear arguments in a lawsuit challenging the constitutionality of I-1183. The labor unions and other groups opposing the initiative say its sweeping changes, including a new $10 million public safety fund, violate the state constitution’s requirement that “no bill shall embrace more than one subject.” There is a real possibility the court will strike down the law, though some experts say the challengers face an uphill legal fight.
The Supreme Court previously has struck down voter-passed initiatives based on the single-subject rule, including overturning Tim Eyman initiatives limiting license tab fees and capping property tax increases in 2000 and 2001. The Legislature later re-enacted a version of the license tab measure.
A decision invalidating I-1183 would leave consumers, state regulators, liquor store employees, retailers, spirits and wine producers, distributors, restaurants, and other businesses in confusion and disarray. State liquor stores already have been auctioned off, their employees have left for other jobs, and supermarkets and other retailers have reorganized their stores to start selling liquor on June 1. Other players have laid plans to do business under the new rules, including retail-to-retail sales of liquor and wine and volume discounting, which previously were prohibited. Time and money would be squandered if the law is overturned.
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?
In Florida, for instance, the state Supreme Court must vet every ballot initiative to amend the constitution before it is presented to voters. The court examines whether the initiative got enough signatures, its title and summary are accurate, and it meets the single-subject test. The court has blocked a number of measures from reaching voters, including the funding portion of a major Everglades cleanup initiative, according to Bob Jarvis, a law professor at Nova Southeastern University law school near Fort Lauderdale.
Similarly, in Massachusetts, the Attorney General decides before an initiative goes on the ballot whether its meets the single-subject and other constitutional criteria. If the AG refuses to certify the measure, that decision can be appealed to the state Supreme Court, which has final say over whether the initiative goes on the ballot.
In Washington, the state Supreme Court has rarely exercised prior review, according to Hugh Spitzer, an affiliate professor of law at the University of Washington Law School. A notable exception occurred in 1996, when the court blocked a ballot initiative calling for the state to ask Congress to call a constitutional convention to consider establishing a national referendum system and ultimately convene a world meeting to discuss global issues. The court held that the measure was outside the scope of the initiative process.
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