By late last week one question surrounding Referendum 71 was settled: The measure passed and the “everything but marriage” statutes go into effect for the whole state, after it was approved handily in most Puget Sound counties and hammered pretty badly elsewhere.
That’s really just the quick question the ballot measure generated. The longer one, which would have survived regardless of the vote count, has political operatives watching closely, legal scholars salivating – and may give legislators something to do in coming years besides sweating the state’s declining finances.
The question: Are the signatures on R-71 petitions – or any other statewide ballot measure – public?
The ongoing court battle over the R-71 signatures played mostly in the background during the fall campaign. For those not following closely, the half-time report finds the state arguing that the signatures are on public documents submitted and checked in the certification process, thus releasable on request like any other document; R-71 sponsors and other initiative backers like Tim Eyman say name on a petition are like a ballot and no more releasable than the way a person votes for governor, mayor or sewer district commissioner.
There’s a difference of opinion among judges, too. Without getting into the play-by-play, it’s enough to say the most recent state judge to look at the dispute likens them to ballots, the most recent federal judge likens them to public records. The 9th U.S. Circuit Court of Appeals froze everything in place for the time being, and the U.S. Supreme Court could be asked to settle the whole matter.
R-71 sponsors haven’t decided to ask for that review, but state Attorney General Rob McKenna said recently that if asked, the Supremes may be willing to take on what’s clearly a novel question.
“ They’re fond of First Amendment cases,” McKenna said. So, by the way, are state attorneys general who get to argue potential landmark cases before the nation’s highest court. So, too, are legal scholars and law school professors who love to take the temperature of the court, especially when it gets a new justice.
Wait a minute. First Amendment? Those who favor the release of petitions say signing on the line is a form of political speech. But while it’s free speech, it’s not exempt from the state’s open records law, McKenna said. “The Legislature could decide to exempt (petitions). They haven’t done so.”
There’s a distinct difference in the way a ballot is handled and a petition is handled, he said.
Think back over the last few weeks to the time you voted: You likely marked your ballot in the privacy of your home, with no one around or maybe a family member to ask “Do you recognize either of these names in the school board race?” You put the ballot in a security envelope, sealed it, put the security envelope in the mailing envelope, signed and sealed it, then mailed it or put it in a drop box. Days later, an elections worker scanned your signature, opened the mailing envelope and put the security envelope in a pile where someone else opened it and placed it with stacks of other ballots that were couldn’t be traced back to the individual voters.
Now think of the last time you signed an initiative petition: Someone you didn’t know approached you at Riverfront Park or outside a supermarket, described the ballot measure in as few words as possible and – if it sounded good or you didn’t much feel like arguing politics with a stranger – you scanned the language and signed. You could look at the names of everyone who signed that petition before you. The stranger you handed it back to could see who signed, so could the initiative sponsors who collect them from the signature gatherers. When state workers check the signatures, supporters and opponents could watch and take down names.
Some sponsors photocopy all the signatures and create databases of like-minded voters who can be contacted later for support, should the measure make the ballot, McKenna said. The state’s major political parties also keep those names in databases to identify potential supporters and donors.
If the court ultimately rules that signing a petition is like voting, the Legislature will have to come up with laws to protect the integrity of signatures the way it protects the right of a secret ballot, McKenna said.
That could include a requirement that each petition carries only one name; that a person signs and deposits it in a sealed envelope; that sponsors can’t open the envelopes or photocopy the names, but instead mustdeliver the envelopes – Eyman, who turned in about 315,000 signatures for his latest effort might want to invest in a moving van — to the secretary of state’s office where they would be opened, counted and verified without public scrutiny or challenge. Could add significant printing and processing costs to the initiative process. But it would make the identity of petition signers as secure as voters.
“You gotta go one way or the other,” McKenna said.