Election: Whatcom charter votes could land county in court

To hear political activists tell it, voters had a clear choice with the charter amendments on the Nov. 3 Whatcom County ballot. The 10 propositions were a lot to digest, but conservatives and progressives tried to boil it down for their supporters.

Conservatives said to vote “yes” on propositions 1, 2 and 3; vote “no” on propositions 9 and 10.

Progressives recommended the opposite.

Taken as a whole, Whatcom voters didn’t take either side’s advice. They voted “yes” on all five, and as a result the county could be headed to court.

The 10 propositions were all amendments to the county charter, which is essentially its constitution. It outlines how county government runs and how its officials are elected.

The Charter Review Commission meets once every 10 years, including this year, to put proposed amendments on the ballot. After the conservative majority on the commission put forward its propositions, including Props. 2 and 3 limiting the power of the County Council, the progressive council fired back with Props. 9 and 10, intended to thwart the commission.

Voters approved Prop. 1, district-only voting, alongside Prop. 9, which redraws the county into five districts rather than the current three.

Prop. 9 has already been to court, under challenge by conservatives. A Skagit County judge dismissed the case before the election.

Karl Uppiano, campaign manager for the charter amendment committee DOVE Whatcom, is among conservatives who suggested the five-district proposition could be ripe for another legal challenge, but their complaints might not rise to the level of lawbreaking.

One issue for conservatives was that the mostly progressive council may need to appoint a few new members during the transition from three to five districts.

“Would a bunch of conservatives like to see a primarily progressive council selecting our representation?” Uppiano said. “I don’t know whether you could take it to court. ... It would be very upsetting to people, and I don’t know how you work through that.”

While progressives introduced Prop. 9 as an antidote to Prop. 1, the two aren’t incompatible. Passage of Prop. 1 means county voters will no longer vote for all council members, just those who live in their district — regardless of the number of districts.

Prop. 9, creating five districts, doesn’t speak to whether voting for council is countywide or district-only — it can be either.

Progressives expected — and conservatives worried — that the five districts as sketched out on campaign fliers would favor a progressive majority on the council.

The mailers show Bellingham within two districts. Under a district-only format, those appear to be safe seats for liberals. The five-district proposal also includes two at-large seats that would be elected by all county voters, even if district-only voting is in place.

Conservatives suspect they can’t reliably win countywide council elections.

So with five districts, according to activists on both sides of the spectrum, the math favors progressives: Two council members from Bellingham plus two elected countywide equals a four-person progressive majority on the seven-member council.

Not everyone buys this theory. Progressives swept countywide council elections in 2013, when the proposed coal terminal at Cherry Point was the main issue, but conservatives won council elections consistently before then.

“I find it really hard to predict the future that way,” Uppiano said. “I don’t know if somebody has actually run the numbers to the point where they can say, ‘Yes, this is actually going to happen.’”

A lot will depend on how the districts are finally drawn, Uppiano said.

A committee will be appointed by the end of January to draw the five districts in time for the 2017 elections. The committee will have two Democrats and two Republicans, who together will select a chairperson. The committee is not obligated to draw the district lines as shown on campaign fliers.

More complicated than the interplay between Props. 1 and 9 is the possible conflict between Props. 2 and 3 on one side, and Prop. 10 on the other.

The voters guide said approving Prop. 10 — which requires a supermajority vote for either the County Council or the Charter Review Commission to put charter amendments on the ballot — would be incompatible with Props. 2 and 3, which require a unanimous vote of the council for certain charter amendments. But the ballot itself didn’t mention this conflict, and on Thursday, Nov. 5, the county prosecutor who wrote the voters guide information said the propositions may not be incompatible after all.

“There’s been a considerable amount of confusion about this,” Uppiano said.

Ultimately, incompatibility between these propositions may end up in the eye of the beholder — especially one who hires an attorney.

“I suspect if this does raise actual conflicts in the charter, it’s going to have to be resolved legally somehow,” Uppiano said.

The council intended for its Prop. 10 to not only conflict with, but to trump Props. 2 and 3.

“We wanted to make it really clear to the voters that this was going to create a conflict between 2 and 3,” council member Rud Browne said of Prop. 10. “The prosecutor’s office took that language out of the ballot title without consulting with us.”

Dan Gibson, the county prosecuting attorney who wrote the ballot language and the statement in the voters guide, said he removed wording on the ballot that said Prop. 10 overruled Props. 2 and 3 because he couldn’t legally justify it.

Since then, Gibson has gone even further in his interpretation of the propositions.

“The council intended that there be a conflict,” Gibson said. “But as you look at it, I don’t know that there necessarily is a conflict.”

The council itself could ask a judge to rule on that, Gibson said. Anyone could, for that matter.

“A little bit to my surprise, the voters approved all three,” Gibson said. “One’s always hopeful that the voting itself will solve the problem.”

This story was originally published November 7, 2015 at 1:30 PM with the headline "Election: Whatcom charter votes could land county in court."