It looks as if the fate of Referendum 71 will be decided long before a final decision is made on whether to release the names of the more than 120,000 people who signed a petition to have the state’s “everything but marriage” law put to a vote.
Last week, the U.S. Supreme Court issued a stay of the 9th U.S. Circuit Court of Appeals’ ruling that the names could be released. The injunction will remain for at least as long as it takes for both sides to file new motions, which could take weeks or months. If the Supreme Court decides to accept the case, it may not issue a ruling until June.
We think that the petitions are public records and that the state constitution supports this. If the court rules otherwise or declines to take the case, it could establish an unsettling precedent for shutting down all kinds of public information for fear that it could be deemed the basis for potential harassment.
The arguments to keep the names secret rest on two shaky suppositions. One is that anonymity protects free speech. Another is that signing a petition is like casting a vote.
When a voter signs a petition, there is no guarantee of privacy. Indeed, those who sign do so in public, not in a private booth or alone at home. Also, those who sign the petition can easily read the names of those who have signed before them and they know that subsequent signers can do the same. Nobody decries this openness as a feature that “chills” free speech, because it isn’t.
Petition signing is different from voting in another important way, which dates to the change in the state constitution that allowed for voter initiatives. Before Amendment 7 was passed in 1912, the Washington Constitution made it clear that lawmaking was the sole province of the state Legislature. But since being amended, Article II, Section 1 reads (italics added):
“The legislative authority of the state of Washington shall be vested in the legislature, consisting of a senate and house of representatives, which shall be called the legislature of the state of Washington, but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature, and also reserve power, at their own option, to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.”
Petition signers are not just offering opinions; they are participating in a legislative process. That doesn’t merit anonymity any more than the work that representatives or lobbyists perform while trying to enact or influence bills. This is the view of the secretary of state’s office and the attorney general’s office.
Anyone can say he will be harassed if his name is publicized, but if this possibility is allowed to nullify public records law, then we can expect a wave of claims that will shut down public information. For instance, public employees can say that publicizing their salaries or full names (which reveal gender) invites harassment.
Our hope is that the U.S. Supreme Court will forever shut down this excuse, because open government is more important than the privacy concerns of its participants.
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