OLYMPIA – Round One in the fight over names on initiative petitions goes to Washington state, and to other states like 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, long-time 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.