To receive the latest news from We the Governed delivered straight to your inbox
Billionaires Paul Allen and Nick Hanauer have each given a million dollars to fund the signature gathering process for the next Washington State anti-gun initiative (I-1639). Both billionaires have paid and well-armed security teams to protect them, so this law will have little impact on their lives. This initiative, among other things, invents a new opportunity for gun owners to become felons by criminalizing certain gun storage behavior based on whether a criminal commits a crime with the stolen firearms. In addition, this initiative denies 2nd Amendment rights for 18-20 year old adults, creates new waiting periods, invents a new gun tax (euphemistically called a “fee”), imposes additional repetitive background checks, creates a new gun registry, and imposes new paperwork and signage requirements for some firearm sales. To see the actual text of the proposed initiative – download it here.
In Washington State, the Attorney General’s office is tasked with drafting a “neutral and fair” ballot title and summary which is then used to communicate the contents of the initiative to the voters. Since so few voters read the complete text of the proposed initiatives, the importance of accuracy for the ballot title, concise statement, and initiative summary is very important so that voters understand the initiative on which they are voting and giving signatures to place on the ballot. Historically, the Attorney General’s office has generally done this job adequately. However, under the increasingly hyper politicized direction this agency has trended under Attorney General Bob Ferguson, these ballot titles are now often written in a manner to promote or harm certain initiatives based on the political objectives of AG Ferguson. As the AG who is best known for marshalling the resources of his office to primarily sue the Trump administration every other week and in his spare time attack local Republicans and Republican supporters with any excuse, while treating Democratic Party violators with kid gloves, it isn’t difficult to recognize the growing partisan bias and increasing weaponization of this agency for political objectives.
In late March, I wrote an article about challenging a misleading ballot title the AG drafted for the Carbon Tax Initiative (I-1631). Two years ago, a very similar initiative was accurately called a Carbon Tax (I-732) which was rejected by the voters. After that failure, the sponsors wanted to change the language and call it “Pollution Fees” this time, a goal and objective which the AG’s office was willing to facilitate. There is a process (see RCW 29A.72.080) to challenge a ballot title which must be initiated within 5 business days after
a ballot title is drafted by the AG’s office. Any Washington State voter has standing to bring this challenge. I wrote in detail about how this is done in this article. This was my first attempt to challenge a ballot title, and while I failed to convince the court that the title should be changed to be more honest, the experience prepared me to try the process once again.
While the Attorney General’s staff was still working on the ballot title draft language for I-1639, their boss, Bob Ferguson came out and publicly endorsed the initiative. This action, by itself, was unusual. This is not illegal, but it certainly is considered unethical since AG staff are not sequestered like a jury during trial while they are drafting ballot titles. Staff are fully aware of how their boss views this issue, and this is the only example I can find in recent
years where an elected AG has done this before a ballot title is even issued. This undue influence on the ballot title drafting process raises red flags. The AG had already endorsed and proposed earlier anti- 2nd Amendment bills in the legislature (see SB 5050 and HB 1387) which failed to garner adequate legislative support, so it appears that Ferguson was going to use the initiative process to further his political agenda against firearm ownership.
The ballot title was issued on May 9th (linked here) and not surprisingly it was drafted in a manner which would be most helpful for the supporters of this initiative. I believe the title is inaccurate and misleading. I filed my initial ballot title challenge on May 16th (linked here) and my opening brief (linked here). I discovered while I was filing my initial challenge a few hours before the deadline that at least two other challenges had been filed. One was filed by another citizen also representing himself (called “pro se”) named Joe Wilson from Whatcom County (linked here). I found out a few days later when I was able to contact him that he read my original article on how to file a petition and he was able to use the article effectively as a template for how to file a ballot title petition. It always makes an author feel good to get confirmation that someone is reading and utilizing the resources you post. Mr. Wilson also filed an opening brief (linked here). Another challenge was being filed on behalf of the initiative sponsors by Pacifica Law Group (linked here) and their response to the other challenges (linked here). Largely, the reason they filed this challenge is defensive in nature so that they can ensure the AG and the court resist any effort by people like me to make the title more accurate and neutral. Later, I found out that the NRA also filed a ballot title challenge (linked here). The AG’s office then responded to all the challenges a few days later (linked here).
The first challenge for the court in this scenario is to consolidate the four different cases into one case with one judge, which makes sense for the efficiency of the court’s resources and to ensure that all the challenges can be heard and resolved in one hearing. All parties agreed to this consolidation, which is normal in these cases. However, the next step in the process was to set the hearing date for the ballot title challenge. This is important because a ballot title challenge is an unusual legal animal with an understandably accelerated court schedule. The schedule is accelerated because initiatives to the people require the signature gathering to be completed and submitted by July 7th to make it on the ballot in November.
The initiative sponsors need to gather 259,622 signatures. Since a certain number of signatures will inevitably be invalid, and they only get one shot to turn these into the Secretary of State’s office, typically they will gather at least 15% more than required to make up for invalid signatures. This means the sponsors basically need to gather and submit 300,000 signatures by July 7th. They can’t start collecting signatures until the ballot title and summary is confirmed (these must, by law, be on each initiative signature sheet). Therefore, a ballot title challenge inevitably delays the start of signature gathering. Recognizing this fact, the court understandably has an expedited calendar for this hearing process. The decision by the Thurston County Superior Court Judge is final. There is no appeal.
The anti-gun sponsors of I-1639 started the process late for reasons only they know (they could have filed this initiative months earlier). This means that they now have a limited window to collect signatures. They will be using paid signature gatherers to do so, of course (they have billionaires to fund the effort after all), however, a reduced calendar makes it more expensive to collect these signatures in time. The ballot title challenge inevitably shortens the time even more. The Memorial Day weekend also caused scheduling problems with the court and the parties involved, which resulted in a variety of calendar arguments and court juggling efforts, which, in turn, has resulted in a final hearing date of June 7th to hear the ballot title challenge before former AG employee and Thurston County Superior Court Judge Carol Murphy. This is almost a month after the original ballot title was issued and will leave barely a month for the sponsors to collect 300,000 + signatures. They can still achieve this goal because they have billionaires underwriting their efforts, but the expense will be higher than normal due to the tardy initial filing of this initiative.
For reference, when using paid signature gatherers and a lean operation, an initiative can be qualified for the ballot, on average, with a budget of $1.2 – $1.5 million. It seems likely that the sponsor’s self-inflicted delays of filing the initiative late and now the ballot title challenge schedule will increase this cost to $2.8 – $3.5 million.
Most paid signature gatherers tend to be nomadic in nature and they travel state to state to collect signatures where they get paid the most. Billionaire funding guarantees that top dollar will be paid to get these signatures, so in the last few weeks, hoards of signature gatherers have flocked to Washington State only to find themselves without the billionaire bucks. They aren’t going to sit around idle, so they will pick up the lower budget initiative efforts like Eyman’s $30 car tabs (which is an initiative to the legislature, so he will be collecting signatures for the rest of the year), the Carbon Tax (I-1631), the no grocery tax initiative (I-1634) and even local initiatives like the no-head tax effort in Seattle. The delay has probably proven to be a boon for these efforts while the signature gatherers pass their time waiting for the Allen/Hanauer Billionaire bucks to be released on I-1639.
Will any of us be able to convince a judge to change the ballot title next week? It is possible, but the deck is typically stacked against the petitioner. Judges historically give enormous deference to the AG and their original language as a matter of course. Judicial discretion is weighted heavily in the state’s favor (particularly in Thurston County Superior Court where many of the judges once worked in the AG’s office). Additionally, the Pacifica Law Group, which represents the sponsor of the initiative and many other Leftist causes, is also a strong financial backer of AG Bob Ferguson with at least $13,233 in direct donations by partners and attorneys over the past few years (not including spouses, children, friends, etc). This law firm is politically aligned with the AG’s office and has demonstrated unusual influence on language changes, even to the point where the AG’s employees will agree to not even fight their ballot title challenges (as they did recently in the ballot title challenge to the grocery tax bill). However, we can only make a difference if we show up, and next Thursday I expect to give it my best effort, as I am sure Mr. Wilson and the NRA attorneys will as well. Hopefully, we can convince Judge Murphy to make at least some changes in order for the ballot title to be accurate and honest. The voters deserve to know the truth about this billionaire funded initiative.
OUR CONSTITUTION BEGINS WITH THE PHRASE “WE THE PEOPLE.” IT WAS THE FOUNDER’S INTENT THAT GOVERNMENT BE CREATED BY THE PEOPLE, TO SERVE THE PEOPLE. IT WASN’T THEIR INTENTION FOR THE PEOPLE TO SERVE THE GOVERNMENT. IT WAS ALWAYS INTENDED THAT GOVERNMENT WHICH FAILED TO SERVE THE PEOPLE SHOULD BE “ALTERED OR ABOLISHED.” UNTIL WE RETURN TO THE FOUNDER’S INTENT, WE REMAIN WE THE GOVERNED…