Washington's battle over petitioner signatures goes to Supreme Court
On Wednesday, the U.S. Supreme Court will hear lawyers argue why those names should be kept secret forever.
What the nine justices decide could uphold citizens' long safeguarded right to know who signs petitions to make or change laws in Washington.
Or they could cast aside such power and invite greater secrecy into supercharged ballot fights here and around the country.
In a case brought by an Arlington group, the high court will consider whether the state's Public Records Act encroaches on the constitutional rights of petition signers by requiring that their names be made public. This will test the limits of the state's 38-year-old public records law and clarify the extent to which those attempting to remake government can be shielded from public view.
Protect Marriage Washington, gatherers of Referendum 71 signatures, contends that petition signing, like voting, is constitutionally protected political speech.
Absent protection, individual voters won't sign out of fear political opponents will get their names and cause problems for them during a campaign.
“To make those signatures public and fair game for those who would use it for harassment and thuggery is crazy,” said Larry Stickney of Arlington, leader of the coalition of social and religious conservative groups.
“To me, it is the death of common sense that says the state's compelling interest to disclose the names overrides the safety of its citizens exercising their right to petition their government.”
Attorney General Rob McKenna said identifying signers enables the public to check who put a measure on the ballot and that it arrived properly. Disclosure is a modest burden balanced against citizens' desire for transparency, he said.
“There's a great deal at stake,” he said. “Without the public being able to access petitions, there's likely to be more error and fraud in initiative drives around the country.”
This battle is rooted in the controversial 2009 law giving registered domestic partnerships the same rights, benefits and obligations as married couples.
Opponents coalesced as Protect Marriage Washington to overturn the law. On June 5, they obtained the first signature and 50 days later, without professional signature gatherers, they turned in 137,881 signatures.
With enough valid signatures, the referendum went on the ballot, where voters upheld the 2009 domestic partnerships law.
The legal fight over the signatures kicked up well before Election Day.
On July 28, three days after turning in petitions, the group sued to prevent Secretary of State Sam Reed from releasing the names. Its lawyers contended release of names would endanger signers, citing the public pledge by the leader of Whosigned.org of Seattle to post names online.
Everett attorney Stephen Pidgeon argued for Protect Marriage Washington that signing a petition is an act of free speech that can be done anonymously under the constitution, especially in the face of potential intimidation by opponents.
U.S. District Court Judge Benjamin Settle agreed, concluding that releasing a person's name violated the petition signer's right to privacy.
The 9th Circuit Court of Appeals quickly overturned him, rejecting the notion that signing a petition is anonymous political speech.
Then Supreme Court Justice Anthony Kennedy blocked disclosure.
In January, a majority agreed to hear the case known as Doe v. Reed and scheduled an hour of argument Wednesday at 10 a.m. EST, (7 a.m. locally). This will be Justice John Paul Stevens' final case and, notably, one he publicly opposed accepting.
While Referendum 71 incited the legal fray, justices will be focused on the interplay of the First Amendment and the Public Records Act approved by voters in 1972.
Under the law, petitions are public.
Not many people seek copies of petitions, which can number thousands of pages — 9,359 for Referendum 71. The Secretary of State has fulfilled six requests since October 2006, with others inquiring but not purchasing.
Initiative promoter Tim Eyman of Mukilteo requested petitions of several initiatives in 2007. Ironically, his group Voters Want More Choices filed a brief urging the Supreme Court not to make petitions public records.
Protect Marriage Washington will be represented pro bono by attorney James Bopp Jr. of Indiana, general counsel for the James Madison Center for Free Speech.
Bopp, an election-law specialist making his sixth appearance in front of the high court, is a renowned in national Republican Party circles.
He's fought to end disclosure of campaign donors, casting it as anti-free-speech. He took part in the recent Citizens United case that resulted in the Supreme Court's removing caps on corporate and union spending on political ads.
Bopp argues in this case the First Amendment ensures everyone a right to participate in politics anonymously and without fear of attack from political opponents.
“This is about government disclosing the identity of people who sign the petition and those people being targeted by homosexual advocates for harassment and intimidation,” Bopp said.
Posting names on the Internet would put signers at risk of confrontation, he said. It happened to donors in California in 2008, he said, when voters passed Proposition 8, making same-sex marriage illegal.
“If we don't win this case, every political consultant in the state of Washington will put this in their tool box,” he said of posting names. “They're going to harass them. They're going to victimize them. They're going to MapQuest these people.”
Signing a petition is not a legislative act subject to public review, as the state contends, he said.
“They are not acting in a representative capacity. They are acting in a sovereign capacity,” he said.
He characterized as “anemic” the state's argument that disclosure is needed to ensure veracity of petition drives. Government can verify accuracy without handing out names of signers, he said.
“It's just talk. It's just a litany that has no substance,” he said of the state's case. “Who cares who signs these petitions?”
McKenna to argue state's case
McKenna will defend the law and weave in arguments of the other two parties in the case, the Washington Coalition for Open Government and Washington Families Standing Together, a political organization formed to preserve the 2009 law.
He's got his argument down and is bracing for the questions from the bench.
“We think the District Court overreached by deciding all petition signing is entitled to anonymous speech protections,” he said.
The ruling of the appellate court provides the bedrock of the case, he said. As those justices point out, signatures are collected in public places with no attempt to conceal identities, he said.
Signing is an exercise of their right to petition the government, but is not a form of political speech deserving constitutional protection, he said.
Voters have a compelling interest to know who is behind measures on a ballot, according to McKenna and other lawyers for the defense. Being able to see those names is a vital tool for the public's use in preventing fraud and malfeasance in elections, they contend.
“We think transparency is more important than the fact that certain people might be dissuaded from participating in the political process,” said Leslie Weatherhead, attorney for the Coalition for Open Government.
Bopp's assertions about harassment are not backed up by the record, or an issue before justices, they said.
“There is no credible evidence at all that individuals who signed the petitions to put Referendum 71 on the ballot suffered intimidation or harassment,” said Anne Levinson, chairwoman of Washington Families Standing Together.
This case is garnering national attention for an assortment of reasons.
Twenty-three states handle petitions for initiatives and referendums in the way Washington does. Many filed briefs with the court supporting Washington.
Media organizations, including The Herald, filed a brief arguing petitions are public records that are vitally important for monitoring the workings of government and conduct of elections.
Activists across the political spectrum are watching closely, too.
“It's an effort for interest groups to get involved and shut down public disclosure that up until now has been uncontroversial information,” said attorney Kevin Hamilton of Perkins Coie in Seattle, a specialist in election law who represents Washington Families Standing Together.
Conservatives argue they need protection from political opponents who are pulling out all the stops to halt their petition drives.
In its filing, the Alliance Defense Fund, whose lawyers focus on civil liberties and religion cases, contends that “fear of harassment at the hands of pressure groups … discourages people from signing petitions.”
The last word?
Wednesday may not resolve what happens with those boxes of signatures in Olympia.
This case deals with all signers of all petitions. If Bopp loses, he could try again and focus on treatment of signers of Referendum 71. If it comes to that, he would need to present specific instances of harassment and intimidation.
Levinson said that “boggles the mind.”
“They're making false claims in an attempt to undermine laws that are in place to protect the integrity and openness of our political process,” she said. “These laws are in place on behalf of the public, regardless of which side one is on.”
Jerry Cornfield: 360-352-8623, firstname.lastname@example.org.
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