You don’t have to read very far in the Washington State Constitution to understand the priority given to grassroots democracy. The second sentence in the Constitution reads: “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” Article II doubles down on this idea, in an amendment adopted in 1911:
The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature
of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.
Thus is the people’s initiative and referendum power enshrined as preeminent in the state, above the legislature itself. But what happens in an emergency such as the one we face now, where it becomes prohibitively difficult to gather the voter signatures necessary to place a measure on the ballot?
Last week, The “Tax Amazon” campaign and the National Lawyers Guild held a press conference to call attention to this issue — an existential one for the campaign especially now that the City Council has suspended deliberations on the payroll tax bill introduced by Council members Sawant and Morales. They called for the rules to be changed so that Tax Amazon can collect their petition signatures online, instead of ink on paper. But doing so is not as easy as it appears.
The state Constitution sets the rules for petitions for statewide initiatives and referenda, with the basic rules written into the Constitution and much of the details in accompanying state law and the Washington Administrative Code (rules written by state agencies that must go through public review before being formally adopted). But first-class cities such as Seattle are entitled to write their own rules; Seattle has done such, also split between the City Charter and local ordinances.
The City Charter (Article IV, Section 1) has similar language to the state Constitution, though perhaps a bit stronger:
The legislative powers of The City of Seattle shall be vested in a Mayor and City Council, who shall have such powers as are provided for by this Charter; but the power to propose for themselves any ordinance dealing with any matter within the realm of local affairs or municipal business, and to enact or reject the same at the polls, independent of the Mayor and the City Council, is also reserved by the people of The City of Seattle, and provision made for the exercise of such reserved power, and there is further reserved by and provision made for the exercise by the people of the power, at their option, to require submission to the vote of the qualified electors and thereby to approve or reject at the polls any ordinance, or any section, item or part of any ordinance dealing with any matter within the realm of local affairs or municipal business, which may have passed the City Council and Mayor, acting in the usual prescribed manner as the ordinary legislative authority.
It goes on to list some of the requirements for the form and format of a petition, mandating that there must be an ordinance specifying the details of acceptable forms of petition, and that the City Clerk must approve petitions before the campaign may begin circulating them:
The first power reserved by the people is the initiative. It may be exercised on petition of a number of registered voters equal to not less than ten (10) percent of the total number of votes cast for the office of Mayor at the last preceding municipal election, proposing and asking for the enactment as an ordinance of a bill or measure, the full text of which shall be included in the petition. Prior to circulation for signatures, such petition shall be filed with the City Clerk in the form prescribed by ordinance, and by such officer assigned a serial number, dated, and approved or rejected as to form, and the petitioner so notified within five (5) days after such filing.
It also specifies the number of signatures required to be collected, who verifies the signatures on submitted petitions (the officer as prescribed under state law), and the timing for doing so.
Signed petitions shall be filed with the City Clerk within one hundred eighty (180) days after the date of approval of the form of such petitions. Upon such filing, the City Clerk shall convey the signed petition to the officer responsible for the verification of the sufficiency of the signatures to the petition under state law for such verification, and transmit it, together with his or her report thereon to the City Council at a regular meeting not more than twenty (20) days after the City Clerk has received verification of the sufficiency of such petition signatures from the officer responsible for verification of the sufficiency of signatures under state law, and such transmission shall be the introduction of the initiative bill or measure in the City Council. If the officer responsible for verification of the sufficiency of signatures under state law notifies the City Clerk that any petition, which, upon filing had a sufficient number of signatures, has insufficient verified signatures, the City Clerk shall notify the principal petitioners, and an additional twenty (20) days shall be allowed them in which to complete such petition to the required percentage. Consideration of such initiative petition shall take precedence over all other business before the City Council, except appropriation bills and emergency measures.
The City Charter doesn’t specify what the criteria are for an acceptable petition. That is written in an ordinance (Seattle Municipal Code 2.08). SMC 2.08.030 notably requires that the petitions be printed on paper of a specific size and include a full copy of the measure’s text along with no more than 20 signature lines:
When the ballot title has been established for a proposed initiative measure, the persons proposing such measure may prepare blank petitions, printed on single sheets of paper of good writing quality no smaller in size than eight and one-half (8½) inches in width and eleven (11) inches in length and no larger in size than eleven (11) inches in width and seventeen (17) inches in length, with a margin of at least one (1) inch at the top. Each petition at the time of circulating, signing and filing with the City Clerk shall be in the form of petition prescribed in Section 2.08.040 and shall consist of not more than one (1) sheet, with numbered lines for not more than twenty (20) signatures on each sheet, and a full, true and correct copy of the proposed measure referred to therein shall be printed on the reverse side of the petition; provided that in lieu of being printed on the reverse side of the petition, such proposed measure may be printed on sheets of paper of like size and quality as the petition and firmly fastened thereto.
State law (RCW 35.21.005) says that the officer responsible for verifying voter signatures is the “county auditor.” Seattle’s Initiative Guide interprets this to mean the King County Records and Elections Division. It’s also presumed that the county will use the state law for signature verification. RCW 35.21.005 doesn’t explicitly say that the signature must be handwritten, but it implies it by discussing how to compare a petition signature to the signature on a voter’s registration: “A variation on petitions between the signatures on the petition and that on the voter’s permanent registration caused by the substitution of initials instead of the first or middle names, or both, shall not invalidate the signature on the petition if the surname and handwriting are the same.” However, the Washington Administrative Code details the criteria for signature verification, and it leaves no doubt that the signature must be handwritten:
So what would need to change in order to accept online signatures on petitions?
First, the city would need to accept petitions online. That would require a change to SMC 2.08, which currently says that petitions must be on paper. The City Council could do that on its own.
Second, the requirement for handwritten signatures would need to be changed. That would either require multiple changes in state law and the Administrative Code to accept alternate forms of signature, or a change to the City Charter such that signature verification is no longer according to state law (and an accompanying new ordinance detailing the new signature verification process).
The change in state law won’t happen anytime soon, and a change in the City Charter would require approval by the City Council, the Mayor, and a majority of the voters — so the soonest that could happen is November assuming everyone agreed that such a change was needed.
But that’s just the tip of the iceberg. If Seattle were to go down that path, it would also need to either negotiate a new verification process with the county Elections Division, if they intended to continue to do the verification work, or set up its own new organization to do “signature” verification or another form of voter authentication. Either way, the new system will be massively complicated: for equity reasons, the process won’t be able to go entirely online, so petition signature verification will need to cover both handwritten and online signatures — and with that, invent a new way of determining whether there is a duplication in which a single voter signed both on paper and online. Also, if the online mechanism requires authentication through something other than verifying a handwritten signature (.e.g password/biometric/etc.) then new accounts will need to be set up for potentially hundreds of thousands of voters before the first election where petitions are accepted through that means. And choosing the underlying authentication scheme, designing the system, and building and testing it will take years, cost hundreds of thousands of dollars, and require a new bureaucracy to maintain it with the highest level of security possible since hacking it would undermine the election system.
In short: even if the politicians were all aligned behind this notion — which they aren’t — there is no way this is rolling out along a timeline that would work for the “Tax Amazon” campaign, which has less than 180 days left to collect and submit the required number of signatures. Despite this, they are already collecting online signatures, which is clearly illegal since the City Clerk has not approved their petition in that form and there is no possible way that the “signatures” they collect can be verified under the law. In fact, I’m a bit surprised that no one from the city has sent them a “cease and desist” letter.
Even if there is no hope of this getting solved for the “Tax Amazon” campaign, they are raising an important issue: the right of the people to legislate, fiercely protected in both the state Constitution and the City Charter, has been undermined by the COVID-19 pandemic, and specifically by the public-health measures put in place to decrease spread of the virus. Based upon what we know today, there is reason to believe that social-distancing restrictions will still be at the very least recommended, if not required, well into 2021. Under those conditions, it will continue to be nearly impossible, or at the very least prohibitively expensive, to successfully petition to place a measure on the ballot. Voter initiatives either will become a mechanism only for the well-financed, or will disappear entirely for the remainder of the public-health crisis (and again during the next one).
That said, we also need to consider the downside of moving to electronic signatures. It’s reasonably difficult to get a measure on the ballot, by design. If it were easy, then there would be a long list of them, on every conceivable topic, on every ballot — far more than voters could expect to make well-informed decisions on. The signature-gathering process is a filter, through which hopefully only the ones with an organized campaign and at least some small chance of passing make it onto the ballot. Moving to online signatures also means moving to online signature-gathering, where it’s much easier to target an audience likely to be open to a particular idea, where it’s cheaper and faster to reach large numbers of people, and where the “transaction cost” for obtaining a signature from a voter is minimal. Maybe that’s a good thing for democracy; maybe not. It’s an important policy discussion to have. It may turn out that moving to online signatures for petitions also means increasing the number of signatures required so as not to lower the bar, if we decide that we aren’t okay with a deluge of ballot measures.
But it also seems that perhaps Council member Sawant and the “Tax Amazon” campaign have not thought through all of the implications of what they are asking for. Initiatives aren’t the only thing that voters can petition to place on the ballot. There is also the referendum, where the voters can overturn a bill that the City Council passes, such as the first “Amazon tax” two years ago that was repealed by the Council when it became clear that a referendum effort was likely to be successful. If we make it easier for voters to petition to add an initiative to the ballot through online signature-gathering, we also make it easier for voters to petition a referendum on nearly any bill that the Council passes. Again, perhaps that’s a good thing at a time when trust in government institutions is low. It’s certainly a vote of no-confidence in representative government.
But wait, there’s one more kind of voter petition worth considering: the recall of an elected official. To get a recall vote on the ballot, a petition must collect signatures equal in number to 25% of the votes in the election that put that official in office. That is a much lower bar to reach when signature-gathering can be conducted entirely online. Elected officials with a reputation for fomenting divisive politics and for flouting the law might think twice about making it easier for constituents to recall them.
Much of this discussion is theoretical, since the chance of any of it being addressed before the end of the COVID-19 crisis is practically nil. There is no magical incantation that local and/or state officials can invoke to suddenly make it possible for the Tax Amazon campaign (and others) to collect petition signatures online now, despite wishful thinking. And the policy questions raised by a real fix are certainly beyond the bandwidth of government officials during the crisis. Further, it seems likely that once the crisis passes this won’t be high enough on the list of problems to get any serious attention from politicians. That’s a shame, because we’re overdue for a serious conversation about how voter initiatives fit into our collective notion of good governance.
If there is any silver lining, it’s that for now Tim Eyman will have to focus on running for governor.
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