The Secretary of State has certified six initiatives to the Legislature this year:

• I-2113, concerning vehicular pursuits by peace officers;
• I-2081, concerning parental rights relating to their children’s public school education;
• I-2111, concerning taxes on personal income;
• I-2109, concerning taxes on long-term capital assets;
• I-2117, concerning carbon tax credit trading; and
• I-2124, concerning state long term care insurance.

Meanwhile, bills are moving in the Legislature this year that could be considered alternatives to I-2117 and I-2124. Whether they would go to the ballot as alternatives if passed by the Legislature has not been definitively answered.

Under the state constitution (Article II, section 1(a)), the Legislature has three options with regards to an initiative to the Legislature. It may enact the initiative without making any changes to it; it may take no action (or reject the initiative), in which case the initiative goes to the ballot; or it may “propose a different [measure] dealing with the same subject,” in which case both the initiative and the Legislature’s alternative go to the ballot.

Before this year, in Washington’s history, only 39 initiatives to the Legislature had been certified. Of those, six were enacted by the Legislature, 30 went to the ballot without alternatives, and three went to the ballot with alternatives. (Of the six that were enacted by the Legislature, three were overturned by the people via referendum.)

The alternatives on the ballot were for I-40 (1972), I-43 (1972), and I-97 (1988). Each of the related bills specifically stated that they were alternatives:

• Chapter 286, Laws of 1971 (1^st Ex. Sess.): “This 1971 act constitutes an alternative to Initiative 43. The secretary of state is directed to place this 1971 act on the ballot in conjunction with Initiative 43 at the next ensuing regular election.”
• Chapter 307, Laws of 1971 (1^st Ex. Sess.): “This 1971 amendatory act constitutes an alternative to Initiative 40. The secretary of state is directed to place this 1971 amendatory act on the ballot in conjunction with Initiative 40 at the next general election.”
• Chapter 2, Laws of 1987 (3^rd Ex. Sess.): “This 1987 act shall constitute the alternative to Initiative 97, which has been proposed to the legislature. If the secretary of state certifies Initiative 97 to the legislature, then the secretary of state is directed to place this 1987 act on the ballot in conjunction with Initiative 97.”

However, it is not clear that the Legislature must affirmatively state that a bill is an alternative. In 1971, the attorney general (AG) was asked, “What test is to be applied in determining whether an act passed by the legislature during the same session at which an initiative is certified to it constitutes a substitute measure?”

In response, the AG wrote, “No Washington cases have considered any of the aspects of this question.” Based in part on a Maine case, the AG advised, “A bill which deals broadly with the same general subject matter, particularly if it deals with it in a manner inconsistent with the initiated measure so that the two cannot stand together, is such a substitute.”

The question arose again with regards to I-940, an initiative to the Legislature in 2018. The Legislature enacted I-940 (relating to law enforcement) on March 8. However, the Legislature also enacted HB 3003 (on the same day, just before I-940). HB 3003 amended I-940, but it specified that the bill would take effect only if I-940 was passed by the Legislature. The constitutionality of this was then challenged, and there was a split decision from the state Supreme Court, which did not definitively answer the question of what constitutes an alternative.

The Supreme Court opinion (signed by four justices) noted that the constitution “bars the legislature from amending an initiative during the same regular legislative session in which that initiative is first considered.” The opinion held that the Legislature did not propose an alternative to the initiative. A majority of the Court ordered the Secretary of State to put I-940 on the ballot. (No alternative was on the ballot.)

In a concurring opinion, Justice Yu also found that “an alternative was not proposed.” Justice Madsen wrote a concurring/dissenting opinion, finding that HB 3003 was not an alternative because it “by its express terms, voids itself if I-940 is placed on the ballot.” Justice Fairhurst wrote in a dissent that HB 3003 was “an alternative proposal, albeit not labeled as one.”

Justice Stephens wrote a dissent (signed also by two other justices): “As the attorney general’s opinion in 1971 observed, when an initiative measure is enacted with any alteration, this constitutes a rejection of the proposed initiative and the proposal of an alternative.” Further,

The constitutional provision operates not upon what the legislature intended but on what it in fact did. While the legislature, in its brief, cites past instances in which it has expressly proposed an alternative measure to an initiative, article II, section 1(a) does not require such express direction. It has long been clear that any legislative measure enacted on the same subject as an initiative certified to the legislature will be regarded as an alternative measure, even if the overlap is inadvertent.

Of the initiatives that have been certified this year, two could potentially be joined on the ballot by alternatives. First, I-2117 would repeal the climate commitment act. At the same time, SSB 6058 (scheduled for executive session in Ways & Means today) and SHB 2201 (scheduled for executive session in Appropriations today) would require the state to link its carbon allowance auction program with those of other jurisdictions. But both bills include this language:

This act is not a conflicting measure dealing with the same subject as Initiative Measure No. 2117 within the meaning of Article II, section 1 of the state Constitution, but if a court of competent jurisdiction enters a final judgment that is no longer subject to appeal directing the secretary of state to place this act on the 2024 ballot as a conflicting measure to Initiative Measure No. 2117, this act is null and void and may not be placed on the 2024 ballot.

Second, I-2124 would make the state’s long-term care program optional. Meanwhile, SB 6072 (in Rules) and SHB 2467 (in Rules) would make several changes to the program, including allowing workers who move out of state to access benefits. (I wrote in detail about both bills here.) During the executive sessions for both bills, legislators raised concerns that they could be considered alternatives to I-2124.

(Note that HB 2278 and SB 6248, which would modify the capital gains tax, could potentially be considered alternatives to I-2109, which would repeal the capital gains tax. That said, they do not appear to be moving.)

If any alternatives are placed on the ballot, two questions would be posed to voters, pursuant to the constitution: “first, as between either measure and neither, and secondly, as between one and the other.” As an example, here’s what was on the 1988 ballot:

First:

• For either I-97 or Alternative Measure 97B
• Against both I-97 and Alternative Measure 97B

Second:

• For Initiative 97
• For Alternative Measure 97B