Article by Erik Smith. Published on Tuesday, April 20, 2010 EST.
Will Argue Before U.S. Supreme Court for Public Disclosure of Petitions
Attorney General Rob McKenna.
By Erik Smith
Staff writer/ Washington State Wire
OLYMPIA, April 19.—Washington Attorney General Rob McKenna is getting set for one of the biggest challenges of his legal career – a high-profile argument before the U.S. Supreme Court that will settle the question of whether signatures on political petitions ought to be a private matter.
McKenna says they shouldn’t be – and it’s an issue that could have reverberations in all 24 states that offer their voters the initiative and referendum.
But there’s another reason the issue carries high stakes. McKenna, a Republican and possible candidate for governor in 2012, was hammered by Democrats last month when he decided to join Republican attorneys general nationwide in a lawsuit against federal health care reform legislation. McKenna was playing to the Tea Party crowd, critics charged.
On this one, most assuredly, he is not.
Case Centers on Gay-Rights Initiative
The case has to do with last year’s gay-rights referendum, R-71, which sought to overturn the civil-union legislation approved by the 2009 Legislature. Though the law didn’t use the word “marriage,” it was everything-but, and a group calling itself Protect Marriage Washington collected 138,000 signatures to place the measure on last fall’s ballot.
Gay activists demanded copies of the petitions under Washington’s public records act, so that they might post all the names of petition signers on the Internet. They said they wanted to “encourage conversation between neighbors,” but initiative sponsors maintained it was a transparent attempt to embarrass signers, expose them to harassment and intimidate them into never signing a petition again.
They sued to prevent the release of the petitions, and a District Court judge agreed. Even though the referendum went down in flames last fall, due largely to the liberal vote in the urban Puget Sound area, the case remains alive and appeals have taken it to the highest level.
Secretary of State Sam Reed and McKenna, both Republicans, have taken the stand that the petitions are a matter of public record and the names ought to be made public. Though the state’s public disclosure law is 37 years old, the issue is really a new one: Previous secretaries of state held that petitions were secret, and only recently has technology made it possible to easily provide images of petitions to those who ask for them.
McKenna goes before the high court for oral arguments April 28. And at a news conference at the state Capitol Monday, McKenna and Reed outlined their reasoning.
Challenge to Public Disclosure Laws
McKenna said the suit challenges the underpinnings of the state public records and disclosure laws, which assure that government is not conducted in secret.
“This case involves a direct challenge to public disclosure and transparency in initiative and referendum elections,” McKenna said. “It will affect not only all Washington state initiatives and referenda but it will affect every state that has an initiative or referendum process, not to mention many other kinds of petitions – recall petitions, candidate-nominating petitions, local-government petitions. Although not every state has a an initiative or referendum process, every state has a petition process for some purpose.
“The Referendum 71 sponsors, in their petition to the Supreme Court, want to conceal from public view initiative and referendum petition-signer information. This means that in the future, other voters who want to know who’s calling for an election, who want to know why people are calling for a law to be suspended pending a referendum election, for example, won’t be able to find out who those people are, if the District Court’s ruling is upheld.
“Nor will those other voters be able to double-check the work of the Secretary of State’s office to verify if the signatures have come from qualified voters. In briefs filed with the Supreme Court by the state of Washington and by many friends of the court, we have seen many, many examples cited from around the country of instances where it turned out to be important that the double-checking, the back-stopping of the voters, be available. Many cases have been cited, as recently as last year in other parts of the country, where mistakes and outright fraud was uncovered because the public was able to take a look at the petitions and do their own research and spot error in some cases.”
There’s Always a Risk
The problem, conservative opponents say, is that publicizing petitions will allow the creation of checkable databases that will allow others to assess the political correctness of voters’ thoughts. Those databases might be used by employers, political opponents or others with a malevolent scheme in mind. And they say no good purpose can be possibly be served.
Some conservatives say campaign finance records are sufficient to show who is supporting a campaign. But not all of them say that, it should be noted. During last year’s campaign, supporters of R-71 argued that the names of campaign donors should be kept private as well, for the same reasons, but they were shot down by state elections officials.
“It’s very telling that some of the same sponsors, or some of the lawyers working for these referendum sponsors, also believe that campaign finance disclosure ought to be turned back in many instances,” McKenna said. “The fact of the matter is that someone may choose not to give a campaign contribution because it’s public information and they may not want to be criticized for making the donation. They may choose not to sign a petition for the same reason. For that matter, they may choose not to register to vote, because they don’t want that to be public information, that they have voted in some elections but not in others.
“There can be chilling effects in any disclosure. The Supreme Court repeatedly ruled in favor of, for example, campaign finance disclosure, because the potential chilling effects are greatly outweighed by the strong interest in knowing who is seeking to influence the course of elections.”
Ballots ought to be secret, McKenna said – that’s a given. Campaign finance ought to be public. And in the gray area in between, where initiative-signatures lie, he says public policy ought to favor disclosure as well, in part because it makes it possible for the public to double-check the work of elections offices.
What makes this case so interesting, McKenna said, is that the Supreme Court has never ruled on this particular issue before – and it is uncharted legal territory. Eighteen states have filed friend-of-the-court petitions supporting Washington’s position, he said. And one of the reasons the Supreme Court may have selected the case for a hearing is the intense public interest in the issue, he said. “The Supreme Court has a difficult time resisting interesting First Amendment cases,” he said.
Not the End of the Case
McKenna is headed back to Washington, D.C. with his legal team, where he will spend the next week preparing for the case. He said he has already held two “moot courts” on the issue in this state and will go two more rounds in the capital next week, trying to make sure he is on top of his game. “It’s a little bit like playing tennis against a tennis-ball machine that’s set on high, because the questions come really fast and furious. So you prepare partly just because you have to move very, very quickly.”
McKenna has already been through the drill once before, in his successful defense of Washington’s top-two primary law.
Even if Washington prevails, the case is likely to be returned to courts in this state, McKenna said. The Supreme Court case is testing a ruling that petitions ought to be considered anonymous political speech. But the initiative sponsors offered a separate contention that has not yet been considered by the courts – that the particular nature of the gay-rights issue warrants special protections for petition signers.
At Monday’s news conference, Secretary of State Sam Reed said he is firmly behind McKenna. “We view this as a very significant case, not only because Washington has a long populist tradition of people having the power to write legislation or repeal legislation, but also because we have a long history going back to territorial days of citizens believing very strongly that this is our government, and we have a right to know what is going on with it, and having a strong conviction regarding transparency. So we welcome this case going to the Supreme Court. I feel very optimistic that we will do very well.”Your support matters.
Public service journalism is important today as ever. If you get something from our coverage, please consider making a donation to support our work. Thanks for reading our stuff.