Legal battle over ballot title turns into a war of the words

Supporters and opponents of a hotly debated property-rights initiative will square off in an Olympia courtroom today in a testament to the power of words.

At stake is the ballot title for Initiative 933 — the handful of words the state will use to summarize the measure on the November ballot.

Thurston County Judge Chris Wickham likely will decide today what those words should be. Both sides say his decision — which cannot be appealed — could influence whether I-933 passes or fails.

Political scientists agree. Many voters, oblivious to campaign advertising and news coverage, base their votes largely on how a measure is described on the ballot, said Western Washington University professor Todd Donovan.

"The way you get these things phrased can have a huge impact," he said.

Initiative 933, filed last month by the Washington State Farm Bureau, would give state and local governments a choice: in most instances, either pay landowners the difference when land-use regulations lower property values — or waive those rules. Property owners would be entitled to exemptions or compensation for restrictions imposed as long ago as 1996.

Initiative 933


Here are the two versions of the initiative:

The attorney general: "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."

The opponents: "This measure would require government studies before adopting restrictions on property use, exempt or pay property owners who object to certain zoning, environmental and other laws, and prevent regulations prohibiting previously-existing uses."

To read the text of Initiative 933, go to www.secstate.wa.gov/elections/initiatives/text/i933.pdf

In Washington, writing ballot titles is the responsibility of the state Attorney General's Office. It has come up with one for I-933 that the measure's backers mostly like.

Opponents, however, contend it is both misleading and incomplete. They have drafted their own language and asked Wickham to substitute it.

Wickham could adopt the attorney general's words, make minor changes the initiative's supporters have suggested — or craft something entirely different.

Fights over ballot titles aren't unusual. Assistant Attorney General Jim Pharris says he has written hundreds over the past 12 years, and at least 1 in 5 has been challenged in court.

But I-933's foes, taking a lesson from Oregon, are putting extra effort into this struggle.

In 2004, Oregon voters overwhelmingly approved a sweeping property-rights measure that inspired I-933. Opposition leaders in Oregon contend an innocuous-sounding ballot title was largely responsible for the measure's passage — an argument supporters dispute.

The Washington Farm Bureau says its initiative, like Oregon's, is a reaction to years of heavy-handed land-use regulation that has inflicted hardships on thousands. Opponents call it "the developer's initiative" and say it would undercut the Growth Management Act and other environmental laws.

For I-933 to appear on the November ballot, backers must submit the signatures of 224,880 registered voters by July 7. Even opponents say they expect it will qualify.

But Dan Wood, the Farm Bureau's government-affairs director, said the ballot-title flap already has delayed signature-gathering by several weeks.

By law, the title must describe what the initiative would do in no more than 30 impartial words. The title Pharris has drafted for I-933 says it "would require compensation when any government regulation damages the use or value of private property."

That language is lifted almost verbatim from the initiative's text. But the League of Women Voters of Washington, Association of Washington Cities and others who have appealed say that simply repeats what the state constitution already says. Initiative 933 defines "damage" more broadly than in the past, they argue, but Pharris' title misses that change.

If the state constitution clearly required compensation for damage, the Farm Bureau responds, I-933 probably wouldn't have been filed.

Pharris' title also doesn't spell out that governments must exempt landowners from regulations if they can't pay. Alan Soicher, a member of the state Forest Practices Board who is among the challengers, said that is its most egregious shortcoming.

In Oregon, every government has opted to exempt rather than compensate. That's the likely result of I-933 as well, Soicher said.

"This is not a question of semantics or wordsmithing," said Tom Geiger of the Washington Environmental Council. "This is a case of the voters being kept in the dark about the most significant aspect of the proposed initiative."

In court papers, Pharris has said that the exemption alternative "can be inferred from the nature of the compensation requirement. ... "

The Farm Bureau's Wood agreed. Government already has the power to waive rules, he said.

Pharris' proposed title also doesn't mention another requirement of I-933: that governments "consider and document" the impact of new regulations on private property. Challengers contend that should be mentioned in the title, too, because such work could be expensive and time-consuming.

But Pharris argues the studies aren't the initiative's primary thrust. And Wood said the challengers' language exaggerates the impact.

"What the League of Women Voters and the Association of Washington Cities are trying to do is cloud the issue," he said. "It shows they're concerned that if voters are asked to vote on this based on what it really does, they will approve it."

Will all this matter come November? Tim Eyman, who has filed dozens of initiatives over the past nine years, doesn't think so. The title hasn't made a difference in the outcome of any of his initiatives that have reached the ballot, he said.

"Losers always say 'It was the ballot title,' " Eyman said.

But Donovan of Western Washington University said research has shown wording can make a difference in voters' responses to questions about some hot-button issues.

One example: In 1998, Washington voters approved Initiative 200, which prohibited the state from "discriminating against — or granting preferential treatment to" — anyone based on race. Opponents tried unsuccessfully to get the ballot title changed to indicate I-200 would dismantle many affirmative-action programs.

When The Seattle Times polled voters on the measure and used the ballot-title language, 64 percent said they would vote for it. But when the measure was described making reference to affirmative action, support dropped to 49 percent.

Both sides of the I-933 dispute clearly want their way with words. They already have done polling to discern which messages — and what language — will help their cause.

And both acknowledge that, if Wickham rules against them, their task this fall will be more difficult.

Eric Pryne: 206-464-2231 or epryne@seattletimes.com