The likelihood that the conflicting gun initiatives on Tuesday’s ballot both will pass has lessened amid a barrage of advertising in the closing weeks of the campaign. The percentage of voters who said they’d vote for Initiative 591 and Initiative 594 both fell from 32 percent in July to 22 percent in October.
I have no idea what those voters are thinking. The measures are fundamentally conflicting. Initiative 594 expands background checks. Initiative 591 restricts broader background checks, deferring to federal standards.
But the latest KCTS9 Washington Poll, led by the University of Washington’s Matt Barreto, shows that both measures still could pass. I-594 is in stronger position in the Washington Poll (64 percent say they’re certain, likely, or leaning toward a yes vote) and the Elway Poll (60 percent).
I-591 fell to 39 percent in the latest Elway Poll. But in the Washington Poll, the support and opposition to I-591 is more closely split: 45.4 percent certain-likely-leaning toward yes versus 43.4 percent certain-likely-leaning toward no. The undecided vote is 8.8 percent.
What would happen if both pass? There is no precedent, no landmark case law on this.
The Attorney General’s office pointed me toward its 1993 opinion issued when Initiative 601 and 602 – two conflicting measures intending to limit state spending – were both on the ballot (I-601 passed).
First, the question would be kicked to the state Legislature, which would have to muster a two-thirds vote to amend and reconcile the conflict, or to nullify one (a two-thirds vote is required in the first two years of an initiative passing). Given the Legislature’s history on gun measures, that seems very unlikely, although it would be very interesting to watch.
Next, it would be kicked to the courts. I suspect dueling lawsuits would be filed – one on behalf of I-594 in liberal King County, and a competing I-591 lawsuit filed in a conservative-leaning county. The 1993 opinion notes that when courts considering conflicting laws, deference is usually given to the most recent law. That would make no sense with initiatives passed on the same ballot.
It would undoubtedly go the state Supreme Court, which would “do everything possible to read them harmoniously,” said Kevin Hamilton, an elections law attorney at Perkins Coie, who represented Gov. Christine Gregoire in the 2004 election dispute. But given the obvious conflicts of I-594 and I-591, that’s probably not a viable resolution.
Instead, the court could simply defer to the initiative with the most votes. Some state constitutions, including California’s, has such a rule. Washington’s does not. “It would be a brand-new rule,” said Hamilton.