Editorial: Ballot issues can’t place one’s rights over another’s

August 9, 2015-Spokesman-Review-Editorial Board

Can a local ballot measure be pre-empted if it appears to require a city to go beyond the scope of its authority? A Spokane County judge said yes, but the state appeals court overruled her.

The tension between these rulings is at the center of legal action taken by Spokane Mayor David Condon to block the Worker Bill of Rights initiative from the fall ballot.

To get away from the prospect of voters adopting constitutionally dubious initiatives only to see them tossed by the courts, the city of Spokane set up a process whereby a hearing examiner analyzes proposed ballot measures before signatures are gathered. In April, the hearing examiner said the fourth “right” conferred by the initiative was legally defective.

The first two prongs of the initiative say workers at businesses with 150 or more employees are to be paid “a living wage” and “equal pay for equal work.” The third prong says workers have a “right not to be wrongfully terminated.” These nebulous aims would be enforced with lawsuits, and the initiative tips the legal balance in favor of workers. For instance, workers would be entitled to recoup legal costs; employers would not.

As the hearing examiner noted, there are limits on the kinds of issues that can be pursued via the initiative process. He noted that an initiative must fall within the jurisdiction of the local governing body, and it cannot conflict with a state or federal law.

It was on this score that the hearing examiner flagged the fourth prong, which calls for the subordination of corporate rights by depriving some businesses access to the courts. Under this measure, businesses with at least 150 workers would have fewer rights in Spokane than anywhere else. They’d also have fewer rights than other businesses in Spokane. If they tried to challenge the initiative, they would be stripped of their rights as “persons” and have no legal standing.

We shouldn’t have to say this, but access to the courts is a fundamental right.

The initiative treats rights as a zero-sum game. In order for some people to gain new rights, some others have to lose basic ones. This is animated by the misguided notion that rights and power are two sides of the same coin. They are not. We are guaranteed basic rights under the U.S. Constitution, but we are not guaranteed equal power and influence.

Proponents could’ve removed the legally flawed portion of the initiative, but instead they pressed forward. The City Council then put it on the ballot. So it was left to the mayor to make the right move.

It’s quite simple: Citizens should not vote on whether to subordinate the rights of others. If you don’t like the legal concept of “corporate personhood,” fight it on the federal level. Spokane can’t inoculate itself by taking a vote.

Ideally, the state Supreme Court will consider the question of what it takes to disqualify a ballot measure and put such controversies to rest. Communities have plenty of other ways to debate the issues.