INITIATIVE AND REFERENDUM

LEGISLATURE ‑- LOTTERIES ‑- GAMBLING ‑- INITIATIVE AND REFERENDUM

While the ultimate approval of sixty percent of the voters will be required to pass a referendum bill authorizing lotteries under Article II, § 24 of the state Constitution, the legislature may pass and order a referendum on such a bill by a simple majority vote of the members of both houses.

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                                                                   April 16, 1974

Honorable Robert C. Bailey
State Senator, 19th District
Legislative Building
Olympia, Washington 98504                                                                                                              Cite as:  AGLO 1974 No. 49
 
 Dear Sir:
 
            By recent letter you have requested our opinion on a question which we paraphrase as follows:
 
            May the legislature pass and order a referendum on a bill authorizing lotteries under Article II, § 24 (Amendment 56) of the state Constitution by a simple majority vote of the members of both houses?
 
            We answer this question in the affirmative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            Article II, § 24 (Amendment 56) of the state Constitution provides, insofar as is here material, that:
 
            ". . .  Lotteries shall be prohibited except as specifically authorized upon the affirmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this Constitution, by referendum or initiative approved by a sixty percent affirmative vote of the electors voting thereon."
 
            Bearing this constitutional language in mind, let us begin our consideration of your question by identifying the several methods by which legislation (i.e., statutes) may presently be enacted under our state Constitution.  As indicated in AGO 1972 No. 25 [[to Damon R. Canfield, State Senator on November 30, 1972]], copy enclosed, there are four such methods.
 
            First, of course, under Article II, § 1 (Amendment 7), a statute may be enacted by means of a bill  [[Orig. Op. Page 2]] which is passed by a "constitutional majority" of the members of both houses of our state legislature and is either approved by the governor or is allowed to become law without his signature under Article III, § 12.  A "constitutional majority," under Article II, § 22, means ". . . a majority of the members elected to each house . . ." for, as stated therein:
 
            "No bill shall become a law unless on its final passage the vote be taken by yeas and nays, the names of the members voting for and against the same be entered on the journal of each house, and a majority of the members elected to each house be recorded thereon as voting in its favor."
 
            Secondly, a statute may be enacted pursuant to a bill passed by both houses of the legislature in the same manner which is vetoed by the governor under Article III, § 12, but then is repassed by a two-thirds majority of both houses ‑ as also provided for in that section.
 
            Thirdly, a statute may be enacted by a bill passed by both houses (by a simple constitutional majority) which is then referred by the legislature to the voters and is approved by them at a referendum election under Article II, § 1 (Amendment 7).  Such a bill, notably, is not subject to the governor's veto power1/ and, hence, while concluding in AGO 1972 No. 25, supra, that the veto power is applicable to a bill authorizing lotteries passed by a sixty percent majority of the members of both houses of the legislature under Article II, § 24 (Amendment 56), supra, we specifically excepted from this conclusion such a bill which, upon passage, is, instead, submitted to the electors as a referendum under Article II, § 1 (Amendment 7).
 
            And finally, a statute may be enacted by an initiative of the people ‑ either to the legislature or to the people ‑ also under Article II, § 1 (Amendment 7) of the Constitution.
 
            Obviously, the special sixty percent requirement  [[Orig. Op. Page 3]] of the first clause of Amendment 56, supra, is applicable to a bill authorizing lotteries which is proposed to be enacted by the legislature under the first two of these four methods ‑ coupled with the additional requirement of repassage by a two-thirds majority of both houses in the event of a gubernatorial veto.  By the same token, it is equally clear that the comparable sixty percent requirement of the second clause is applicable with respect to voter approval of a lottery authorization enacted under either the third or the fourth method; i.e., by referendum bill or initiative.  Your question is whether, in the case of a referendum bill utilizing method three, the legislature's action in passing the proposed lottery authorization law and referring it to the voters is also subject to a sixty percent majority requirement ‑ or may this action be taken by a simple majority vote of the members of both houses in accordance with Article II, § 22, supra?
 
            In providing for referendums on bills passed by the legislature, subsection (b) of Article II, § 1 (Amendment 7) reads as follows:
 
            "(b) Referendum.  The second power reserved by the people is the referendum, and it may be ordered on any act, bill, law, or any part thereof passed by the legislature, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions, either by petition signed by the required percentage of the legal voters, or by the legislature as other bills are enacted.  . . ."  (Emphasis supplied.)
 
            Also to be noted is the fact that Article II, § 24 (Amendment 56), supra, itself, is phrased in the disjunctive.  Here repeated for ease of reference, it states that:
 
            ". . .  Lotteries shall be prohibited except as specifically authorized upon the affirmative vote of sixty percent of the members of each house of the legislature or, notwithstanding any other provision of this Constitution, by referendum or initiative approved by a sixty percent affirmative vote of the electors voting thereon."  (Emphasis supplied.)
 
             [[Orig. Op. Page 4]]
            In view of the above underscored language of the first of these two constitutional provisions, together with the disjunctive format of the second, it is our opinion that while the ultimate approval of sixty percent of the voters will be required in such a case, the legislature may pass and order a referendum on a bill authorizing lotteries by a simple constitutional majority of the members of both houses in accordance with Article II, § 22, supra.  In so concluding we have not overlooked the phrase "notwithstanding any other provision of this constitution" in Amendment 56, supra, but we view it as only meaning that the sixty percent factor in the second clause of the amendment is to prevail over so much of Article II, § 1 (Amendment 7) as provides that ". . .  Any measure initiated by the people or referred to the people as herein provided shall take effect and become the law if it is approved by a majority of the votes cast thereon."  (Emphasis supplied.)  We do not read this disclaimer as also overriding the provisions of Article II, § 22, supra, with respect to the passage of bills by the legislature itself, when the device of a referendum bill is utilized by it to authorize lotteries under Amendment 56.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***
 
1/See, State ex rel. Lofgren v. Kramer, 69 Wn.2d 219, 417 P.2d 837 (1966).