Washington measure to restore affirmative action trails but could still pass as votes are counted

Voters in Washington weighed in on two significant ballot measures this week, but given the state’s notoriously slow-to-count vote-by-mail system, neither has been decided yet, and we may not know the final results until next week. One of these two notable measures is Referendum 88, a proposal to restore the use of affirmative action in situations such as college admission and government contractor hiring. After Wednesday evening’s update, “no” was narrowly leading, 52 to 48, but the results remain in doubt.

That’s because one of the few counties where the measure is passing is populous King County, home of Seattle. There, “yes” is currently ahead by a 61-39 margin, and there are still 277,000 ballots left to be counted in the county, which represents almost half of all outstanding ballots. It’s therefore distinctly possible that “yes” could pull into the lead by the end.

Referendum 88’s path to the ballot was a complicated one. Initially, supporters of affirmative action sought to place a measure called Initiative 1000 on the ballot this year, a proposal to overturn a 1998 measure called Initiative 200 that banned the use of affirmative action. However, lawmakers liked Initiative 1000 and simply passed it themselves, obviating the need for it to appear on the ballot.

Affirmative action opponents responded by obtaining the signatures needed for a so-called veto referendum of the newly passed legislation (sometimes known as a “people’s veto”), resulting in Referendum 88. So, confusingly, even though the referendum was advanced by affirmative action opponents, a “yes” vote was a vote for affirmative action and a “no” vote was a vote against affirmative action. That allowed opponents to run under the cynical but hard-to-disagree-with slogan “Vote no on discrimination.”

The other key measure was Initiative 976, the latest effort from Tim Eyman, a conservative gadfly who makes his living by profiting off his efforts to spearhead anti-tax initiatives every two years. He was, unsurprisingly, also behind the original measure to ban affirmative action back in 1998.

This year’s Eyman initiative sought to cap annual vehicle registration fees (known locally as “car tabs”) at $30. Two decades ago, Eyman sought to enact a similar cap, but it was struck down by the courts just a few months after it passed. Since that time, car tabs in many counties have crept up through add-on fees imposed by regional transit taxing authorities. Those add-on fees, though, pay for a variety of large infrastructure projects. Eyman’s new measure would cut an estimated $451 million out of the state transportation department’s $6.7 billion biennial budget.

As of Wednesday’s count, I-976 was passing 55-45, though again, King County voters were opposed by a bigger spread, 57-43. Given the measure’s current 10-point edge, however, it’s unlikely that late-breaking King County ballots could change the result, though it’s not impossible. But even though its final status has yet to be determined, the initiative has already had an impact: Democratic Gov. Jay Inslee has placed a temporary halt on any transportation projects that are still in the planning stages (anticipating a large and imminent revenue shortfall), though those that are currently underway are not affected.

The long-term solution, however, appears to be simply suing I-976 into oblivion. On a number of previous occasions where an Eyman initiative has passed, the Washington Supreme Court has simply dismantled it. Eyman, it turns out, is not terribly good at drafting initiatives that pass constitutional muster (which is why his previous car tab cap failed), but his personal business model doesn’t depend on his initiatives actually having any legal staying power. King County, the city of Seattle, and Sound Transit (the Seattle metro area’s regional taxing authority) all already have lawsuits in the works.

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