Losing the Initiative

The most popular citizens ballot measure in state history has been struck down, and we shouldn't be surprised.

Last week, judges in Washington state struck down two separate statewide, voter-approved initiatives.

King County Superior Court Judge Mary Roberts ruled that I-747, Tim Eyman’s 2001 initiative limiting property-tax increases, had deceived voters. It isn’t entirely clear why it took a judge five years to figure out that Tim Eyman was deceptive. The concept isn’t exactly new.

Attorney General Rob McKenna has already announced he will appeal the I-747 ruling, but he has not said whether his office will appeal a ruling the previous day in Yakima by U.S. District Judge Alan McDonald. Even though only a portion of the law had been appealed, McDonald invalidated the entirety of I-297, the 2004 initiative prohibiting the federal government from sending more radioactive waste to the Hanford Nuclear Reservation until most types of existing noncommercial waste was cleaned up. (The timeline for said cleanup is presently sometime shortly after the sun goes supernova.)

With 70 percent of the vote, I-297 was the most popular statewide initiative in Washington history. When the Hanford watchdog group Heart of America Northwest launched its drive to approve I-297, the question was never seriously whether voters wanted more nuclear waste at Hanford. It was always whether the measure would hold up in court. With McDonald’s ruling, we have our first, and, if McKenna chooses not to appeal, quite possibly final, answer.

Only a week earlier, when the I-297 hearing was held in McDonald’s court, Heart of America confidently said it would prevail. But McDonald’s ruling was unequivocal. He agreed with the federal government’s argument that I-297 violated the feds’ sole authority to manage nuclear waste, as codified in the Atomic Energy Act, and, furthermore, that it impinged on federal regulation of interstate commerce.

This should not have come as a surprise. McDonald’s ruling parallels a situation in the late 1990s in Nevada, when local residents, the legislature, the governor, and Nevada’s congressional delegation all opposed turning Yucca Mountain into the nation’s sole permanent repository of high-level nuclear waste. Their arguments were compelling—among other things, that Yucca Mountain rests on an active earthquake fault—but it didn’t matter. Congress voted to site the waste there, and the courts ruled that the federal government had sole authority to decide what happened to the waste.

Heart of America and its supporters were thoroughly convinced that they had found a legal strategy that could compel the federal government to abandon its plan to import more nuclear waste to Hanford. And they still might prevail on appeal. But at first glance, the odds are against it. And let’s be clear on this one: Yeah, it’s great that I-297 got 70 percent of the vote. But we should know by now that the federal government does not particularly care what we think, especially on matters having anything to do with national security. And moral victories are no longer enough. If they ever were.

Moral victory, in this case, sucks. But it seems like a great many progressive ballot measures in recent years have met this same ineffectual fate: passed by voters, and then either struck down by the courts, eventually reversed by the Legislature, ignored due to lack of funding, or (a local favorite) ignored as an “advisory” measure that advises nobody. Advocates get their message before voters, they get a free ad in the state Voters Pamphlet, they even get their perspective ratified by voters. But public policy does not change.

Eyman, accompanied by a slew of well-funded corporate special interests, discovered the possibilities of the modern citizen-sponsored ballot measure before local progressives did. Despite Eyman’s various court setbacks, Republican and business interests have been more successful at crafting measures that stand up in court and have a real impact. Progressives haven’t been as good at turning public support into law.

That also shows up in many electoral challenges. As a current notorious example, consider all the agitation over U.S. Sen. Maria Cantwell’s qualified support of the war in Iraq. Three progressive campaigns are challenging her in November with emphasis on the war: Mark Wilson and Hong Tran in the Democratic primary, and the Greens’ Aaron Dixon. (Libertarian Bruce Guthrie is also running on an antiwar platform.) None has held office, and none has any real chance of affecting the race, let alone winning—even though polls show a majority of voters, especially Democrats, oppose the war and want troops brought home. But without strong, unified pressure, why should Cantwell reconsider?

Filing initiatives and running electoral campaigns are steps up from protests and letter writing. They are attempts to not just influence the dialogue but create policies that reflect actual public sentiment. Even in a state where Democrats control the Legislature and most statewide offices, these efforts usually haven’t succeeded.

Not yet. The barriers are formidable, but they can be overcome. Hopefully, progressive activists will figure out how to tap into that sentiment in a way that actually does change public policy—sometime before the sun goes supernova.