I Developments in Washington's Law of Law-Making - Gonzaga ...

GONZAGA LAW REVIEW
[Vol. 44:3
court blocked the initiative from appearing on the ballot, reasoning that the majority
vote requirement of the Alaska constitution 405 operated as a constitutionally based
subject matter restriction which barred the enactment of a law that proposed to
modify the majority vote requirement. 406 Accordingly, the initiative could not appear
on the ballot.
In contrast, the Washington court in Futurewise rejected this type of "subject
matter exclusion," finding it inconsistent with Coppernoll: "if, as in this case, an
initiative addresses areas within the broad legislative power, the question of whether
the initiative ultimately will violate one of the constitutional limitations in these areas
is a constitutional inquiry" in which the court will not engage before the measure
appears on the ballot. 40 7 The distinction between an initiative that exceeds the
legislative power as a purported amendment to the constitution and one that merely
poses the risk of substantive unconstitutionality has the potential to get quite
metaphysical. It is plain, however, that Washington's court will reject a pre-election
challenge unless the proposed initiative clearly violates the Philadelphia 11 standards
of being legislative in nature and within the state's power to enact.
B. Protecting the Spear: Legislation Affecting Ballot Measures
Article II, section 1 provides ballot measures approved by the voters with a twoyear
"protection" against amendment by the legislature. A two-thirds vote of the
legislature is required to amend such measures within two years of their enactment. 408
Whether a ballot measure may be amended or repealed within two years of its
enactment not only raises the constitutional question of the protected period but also
poses a point of parliamentary inquiry because the presiding officer may be asked to
determine the number of votes needed to pass a bill that affects a ballot measure. 4 0 9
For example, the voters approved Initiative 872 ("top-two" primary) at the
November 2004 election. 4 1° In 2005, the Senate considered SSB 5219, an
amendment that proposed changing the date of the primary from September to
August. 4 11 On the floor of the Senate, one senator raised the parliamentary question
of whether the amendment, if adopted, would be a supplemental act, which does not
require a two-thirds vote, or whether it would constitute an amendment to the
405. ALASKA CoNST. art. H, § 14.
406. Alaskans for Efficient Gov't, 153 P.3d at 302.
407. Futurewise v. Reed, 166 P.3d 208 at 712 (Wash. 2007).
408. WASH. CONST. art U, §§ 1(c), 41; see Law of Law-Making, supra note 8, at 456.
409. See Law of Law-Making, supra note 8, at 459 & nn.92-94 (explaining that presiding
officer interprets rules, not constitution). S. Journal, 60th Leg., Reg. Sess. at 649-50 (Wash. 2008)
(ruling on S.B. 6931, February 29, 2008) (same).
410. 2005 Wash. Sess. Laws ch. 2.
411. Substitute S.B. 5219, amendment 45, 59th Leg., Reg. Sess. 377 (Wash. 2005).