In almost every election, Washington voters are asked to approve or disapprove either state or local initiatives or both. The most recent election had four state initiatives on the ballot. Three of the four lost. Why some initiatives win and others lose is an exercise in political science best left to others.
The right to initiative (creating laws) and referendum (repealing laws) is a uniquely Western political phenomenon. In the early 20th century, a progressive political movement attempted to address the undue influence that railroads and other corporate entities had over state legislatures by providing for direct legislation by the people. Washington adopted the right of initiative and referendum by amending the state Constitution in 1912.
The subject matter of statewide initiatives has had a broad reach. In 1914, for example, an initiative imposed a statewide prohibition on alcohol consumption and in 2011, an ongoing effort led by Costco successfully privatized liquor sales. The 2024 initiatives on the ballot were spearheaded and largely financed by a hedge fund multimillionaire. It is not hard to imagine how the early advocates of the initiative/referendum movement would feel about the process being co-opted by giant corporations like Costco and wealthy ideologues.
While statewide initiatives are provided for in the state Constitution, the right to local initiative/referendum is purely a creature of state law. Only certain cities and counties in Washington can adopt the right of initiative/referendum. At last count, seven counties and 63 cities have adopted the process.
Because they are not grounded in the state Constitution, local initiatives are much more limited in scope and subject matter due to a series of court rulings. Those rulings restrict the scope of permissible local initiatives in two ways. First, a local initiative cannot legislate on administrative matters and second, a local initiative cannot legislate on subjects that are exclusively delegated to the local legislative authority, such as a city or county council, rather than the city or county itself. Likewise, a local initiative cannot conflict with state law. Some examples of initiatives that have been struck down by the courts include: preventing fluoride in a city’s water supply; renaming city streets; requiring voter ratification of city revenue bonds, and an attempt to prevent the use of automated traffic safety (“red light”) cameras among others.
Two requirements
Citizens who avail themselves of the local initiative/referendum process have two fundamental requirements that they must meet. First, they must closely follow the required procedures for obtaining valid signatures on any petition(s) that are circulated. A petition that does not satisfy these procedures will be invalidated. Second, they must ensure that the subject matter of the initiative is within the scope and powers of local initiatives and state law. It is not the responsibility of local government to provide legal or other advice to individuals who engage in the initiative/referendum process. An independent legal opinion should be obtained before engaging in the often complex process of direct legislation.
The right of initiative and referendum are powerful tools and the power that enables citizens to legislate directly carries with it significant duties and responsibilities.
Ted Gathe is chair of Clark County’s Clean Water Commission and former city attorney for Vancouver.
