We are reluctant to second-guess a federal judge on questions of law, but if Benjamin Settle is right that Washington’s open public records act may unconstitutionally abridge a right to anonymous political speech, we have a problem.
Fortunately, Washington Attorney General Rob McKenna says he will appeal the matter to the 9th Circuit Court of Appeals. He wants the higher court to stay the preliminary injunction that U.S. District Judge Settle of Tacoma issued Thursday to prevent the names and addresses of people who signed Referendum 71 from being made public.
The controversial referendum will appear on the state’s Nov. 3 general election ballot, thanks to a successful petition drive by opponents of a 2009 state law expanding rights for same-sex couples in domestic partnerships.
Historically, the names of voters who sign referendums and initiatives in Washington state have been treated as public records, as they should be. Washington’s Constitution emphatically makes voters the ultimate legislators for the state. When elected representatives fail to satisfy them, the public has broad latitude to take its concerns directly to the ballot – if it can demonstrate sufficient support in the form of other voters’ signatures.
The process is not like lawmaking, it is lawmaking, as clearly spelled out in Article II of the Washington Constitution. And the broader public, which must live under those laws, has a vital interest in knowing who is making them. The petition and initiative process produces legislation every bit as binding as the laws passed by the Legislature and signed by the governor, and anonymity has no place in either setting.
We look back on the chaos of this state’s 2004 gubernatorial election with its carnival of counts, recounts and misplaced ballots. In the end, not everyone was satisfied, but both sides had ample opportunity to dig into public records and openly debate the validity of the vote, based on shared facts. Clumsy as it was, it produced enough credibility for us to move on.
On the other hand, a legislative system that allows measures to go to the ballot based on secret processes by unknown participants is fraught with political peril.
Those who sought the injunction claim they are in danger of harassment and intimidation if they are identified publicly. If they truly face serious threats, there are laws and agencies to protect them from illegal acts. If they just want to escape the discomfort of being accountable for their hand in changing the law, that goes against the fundamental merits of open government.
Our system may not be perfect, but its transparency keeps it manageable. Sealing public records would be an invitation to serious mischief and grief.