Conventional wisdom says that nearly all initiatives dramatically lose support the more voters learn about them. For example, last year’s Initiative 912, which would have essentially repealed the state’s transportation improvement package, enjoyed a 15 point advantage in June, but lost by 10 points in November… a twenty-five point swing in only five months.
Most consultants will tell you that unless your issue polls upwards of 75 percent, you shouldn’t waste your money… thus one of the first things most prospective initiative sponsors do, is commission a favorably worded poll to prove to potential backers that they have overwhelming support.
And that’s exactly what the Washington State Farm Bureau did last fall in preparation for I-933, when it crafted the following loaded polling question:
“If there were an initiative on the ballot that would require state or local government to pay a property owner if a government action damaged the value or use of their property, would you vote yes to support the initiative or no to oppose the initiative.”
Well, gee… an initiative requiring compensation if government damages your property? Well that sounds good. (Actually, it’s already in our state Constitution.) No wonder the question reportedly polled at 79 percent.
But of course, you can’t expect such favorably loaded wording when the Attorney General’s office writes your ballot title. Or can you…?
This measure would require compensation when any government regulation damages the use or value of private property, forbid regulations that prohibit existing legal uses of private property, and provide for exceptions and conditions.
Gee… when I filed my initiative, Deputy Solicitor General Jim Pharris wouldn’t even write me a ballot title that described what the initiative did… and then sought an injunction against me when I challenged the title in court.
But Pharris not only gave the WSFB a ballot title with the most favorable wording possible — using the loaded word “damage” — he apparently relied on their focus group and polling data to craft it. This is a ballot title the WSFB might have written itself. (Perhaps, it did.)
Not that any of this is a surprise. Pharris has long suffered from “Stockholm Syndrome,” identifying with the likes of Tim Eyman after being forced to defend so many of his unconstitutional initiatives. Intentional or not, he routinely gives anti-government initiatives favorable ballot titles.
Neither would it surprise me if Attorney General Rob McKenna — proudly in the pocket the Building Industry Association of Washington — took a personal interest in the Developer’s initiative. The BIAW, a strong backer of I-933, has played a crucial role in developing and supporting WA’s so-called “property rights” movement and its right-wing militia spin-offs. The BIAW also put $275,000 into independent expenditures on McKenna’s behalf in 2004, calling his election one of “the biggest political victories” it has ever had. For his part, McKenna reportedly phoned the BIAW on election night and told them “If it wasn’t for BIAW I wouldn’t have been elected.”
But regardless of the motives or behind-the-scenes wrangling, this is simply a bad ballot title, and I-933 opponents are rightly challenging it in court. Statute requires “a true and impartial description of the measure’s essential contents,” but a brief filed on behalf of the League of Women Voters and other petitioners correctly points out that
Pharris’s the WSFB’s wording fails to describe any of I-933’s four main provisions.
Maybe our State’s voters would vote “yes” if the November ballot described this measure’s four basic changes to Washington law. Maybe they would vote “no”. But at the very least, the Concise Description of this measure printed on the november ballot should tell voters what those four changes are. Indeed, Washington’s ballot title statute demands it.
With that, attorney Thomas Ahearne goes on to propose a truly neutral alternative to Pharris’s leading description:
This measure would require government studies before restricting property use, exempt or pay property owners who object to certain zoning, environmental, and other laws, and prevent development regulations that prohibit previously-existing uses.
Opponents have a single shot at a ballot title challenge; there is no provision for appeal beyond Thurston County Superior Court. If this is an unbiased judge interested in presenting the citizens of this state with an unbiased ballot title, he’ll approve a concise description closer to Ahearne’s than that drafted by the WSFB/AG.