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June 24, 2010 in City
High court: Petitioners’ names can be released
OLYMPIA — Round One in the fight over names on initiative petitions goes to Washington state, and to other states such as Idaho that have similar laws.
The U.S. Supreme Court ruled Thursday that the First Amendment does not block the release of the names of people who sign initiatives or referendums when the state receives a request under the Public Records Act. The state’s concerns about honest and transparent elections trump unspecified privacy concerns, the court said in an 8-1 ruling.
Public disclosure of petition signers “in general is substantially related to the important interest of preserving the integrity of the electoral process,” Chief Justice John Roberts wrote in the majority opinion.
Washington Secretary of State Sam Reed called it a victory for open government.
Said Washington Attorney General Rob McKenna, “this is a good day for transparency and accountability in elections — not just in Washington but across our country. Citizen legislating is too important to be conducted in secret.”
Idaho was one of 22 states that supported Washington’s arguments in “friend of the court” briefs.
The high court emphasized that it ruled on the general question of signatures on petitions for ballot measures, not the specific case involving people who signed Referendum 71, which sought to repeal a 2009 law that granted additional rights to same-sex couples and unmarried heterosexual couples in domestic partnerships. R-71 qualified for the ballot, but voters refused to overturn the law.
With the overall First Amendment challenge out of the way, the Supreme Court sent the case back to U.S. District Court in Western Washington for Round Two, to determine whether R-71 sponsors can make a compelling case that their petition signers face the kind of threats that warrant an exemption from disclosure under the Public Records Act. Any ruling in that case is likely to return to the Supreme Court down the road.
James Bopp Jr., attorney for Protect Marriage Washington, said the group will now ask the court to bar disclosure of the signers of R-71: “We are confident that the District Court will agree that these tactics have no place in the discussion of marriage and will prevent the release of the personal information on those who support traditional marriage.”
The Supreme Court majority said R-71 supporters might be able to block the release of the names on their petitions if they can prove “reasonable probability … of threats, harassments or reprisals.”
Justice Clarence Thomas, the sole dissenter, questioned how that could be applied: “How many instances of ‘threats, harassment or reprisals’ must a signer endure before a court may grant relief?”
But Justice Antonin Scalia argued in a concurring opinion the state already has laws to prosecute people who harass or threaten, and suggested that petition signers should show some backbone: “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”
Another case in state courts also challenges the release of petition names. In it, longtime initiative sponsor Tim Eyman is fighting the release of names from multiple petition drives to be used for commercial purposes. Shawn Newman, the state director for the Initiative and Referendum Institute, said those public record requests have been blocked by a temporary restraining order while the Thurston County judge awaits rulings in the federal case.
Getting the federal court to ban the release of names on all petitions under a First Amendment challenge was a “Hail Mary thing,” Newman said. Making the case to protect the signers of a specific initiative might be easier, although he wonders how sponsors can show they’re at risk before they start collecting signatures and actually receive threats.
“It’s kind of a chicken and egg thing,” Newman said.
The state case might succeed at blocking all petition names because the state Constitution has stronger protections for personal privacy than the U.S. Constitution, Newman said. But that case, which would be Round Three, could take years because it may remain on hold until the federal case works its way back up through the U.S. Supreme Court, and any ruling by the state trial judge will be appealed to the state Supreme Court.
The case is Doe v. Reed, 09-559.
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Ninch on June 24 at 8:34 a.m.
I think the real focus should be on those who wrongly use these names to intimidate petition signers because they (those who intimidate) are actually violating the First Amendment rights of the petition signers. Those who do not want to debate the issue, but rather choose to target individuals who disagree with actions that may result in physical and economic harm (as happened in California) should be prevented from doing so rather than encouraged.
swensel on June 24 at 8:55 a.m.
Given that there has been no attempt to intimidate, harass, or in any other way contact these people, howling about it is premature. I actually had signature gatherers get in my face when I refused to sign their petition — what about *my* First Amendment rights?
Bringing up California is also a red herring as there were no accounts of intimidation, harassment, or other unpleasant behavior reported to the police by those who oppose gay marriage. In fact, the most ardent supporters of it in California didn’t live in the state!
Charlie on June 24 at 9:01 a.m.
Weren’t the names and addresses posted on a web site of those who signed the petition against gay marriage in California?
misjustice on June 24 at 9:52 a.m.
There is no expectation of privacy in the petition signature collection process. Think about it; names are procured in public often in front of stores, anyone signing one of these things can see the names of those which already signed. In order to have an expectation of privacy, one must take the steps required to protect that privacy. Meaning that petitions should have privacy covers over the forms so that no one can see who has signed the form.
In this case, I agree with the judge’s finding. The petition process ends up creating law, and we have a right to know who is creating our laws. Generally speaking, I am against the direct democracy processes, referendum and initiatives, because they circumvent our Legislature - and the ones dually elected to craft our laws. Additionally, many citizens do not fully understand what they are signing and are easily manipulated by buzz words and outside interests.
If we are going to continue to allow direct democracy to be used to write our laws, then I suggest not allowing people and groups from outside of the state to be involved in the process. I don’t want wing nuts from Kansas determining/influencing the laws of Washington state…
Dazzeetrader11 on June 24 at 10:53 a.m.
Well…if intimidation or physical violence against a supporter on either side, personal protection devices will be used. And they should be too. Judges opened a very difficult door….wider.
Cuts both ways. Those who support gayness in marriage will be singled out too. Transparency is good.
misjustice on June 24 at 11:00 a.m.
I have signed my last petition. I feel when you sign a petition to have something put on the ballot, it should be private & open only to those employees working for the state/petitioners.
If my signature is not private, then I will NEVER sign for another petition to be put on a ballot. EVER!!
spokanada on June 24 at 11:08 a.m.
Gramma, you didn’t sign the petition in private so why do you think your name was private?
MisJ, very good post. You pretty much summed it up.
spokanada on June 24 at 11:54 a.m.
It’s funny that the petition signers are worried about harassment from the people that they want to discriminate against.
mikeln on June 24 at 12:29 p.m.
I would never sign anything that would make me look like a bigot. If you believe in somthing you should not be afraid of letting everyone know where you stand….unless you are ashamed of your actions.
Dazzeetrader11 on June 24 at 1:48 p.m.
I don’t think most people were concerned about their choices. They were concerned about being harrassed over their choices. If that happens…the decision will be modified.
In a way, it’s like voting…which should be private. I think the decision is shortsighted…..we’ll see. It’s good to remember that there are goofs on both sides of this…something will happen…something will . Too much passion in this one.
spokanada on June 24 at 3:02 p.m.
Daisy, not passion….but hate.
People should be afraid of harassment if they are trying to discriminate against people.
misjustice on June 24 at 4:23 p.m.
@spokanada, you nailed it, re; hate.
The haters want to be able to don their white sheets and hide their identities while denying to others the very ‘rights’ that they claim for themselves.
flutieflakes on June 24 at 6:17 p.m.
The signers should be more concerned about losing business than being harassed.
spokanada on June 24 at 6:41 p.m.
Flutie, good point!
I’m looking forward to the list being released.
swensel on June 24 at 9:22 p.m.
Why should signing a petition be kept private? The petition itself is a public record; opponents of the petition need to be able to challenge the signatures. They can’t do that if they don’t know who supposedly signed it.
A better comparison is voter registration rolls. Voter registration rolls are public documents in large part to enable interested parties in ensuring that only those who are alive and eligible to vote can. Both lists are transparent to allow both sides of an issue to evaluate the legitimacy of those capable of acting on it.
Dazzeetrader11 on June 24 at 9:22 p.m.
Hate is part of the passion…just a subheading. I’d bet this will be reversed. McKenna is already in trouble with his conservative base. Just my opinion but he won’t make it the Governor’s mansion. Cannot do what he’s done and be elected.
chelsita on June 25 at 9:48 a.m.
A petition signaure is not a vote. Apples and oranges. Individuals have a right to sign or gather signatures for any measure, and the public has a right to verify the validity of such. It’s not complicated.