by David Ammons | January 15th, 2010
The U.S. Supreme Court has agreed to hear a challenge of Washington’s practice of releasing initiative and referendum petitions under the state’s voter-approved Public Records Act.
The court said it would hear oral arguments, possibly as early as April 19, on the appeal brought by Protect Marriage Washington, opponents of Washington’s new “everything-but-marriage” domestic partnership law.
The organization and several unidentified John Doe members of the campaign won a district court ban on disclosure of Referendum 71 petitions last September, but lost in the 9th U.S. Circuit Court of Appeals. The appeals bench said the Secretary of State’s policy of releasing petitions as a matter of public record did not violate the First Amendment rights of initiative and referendum backers. Challengers assert that if their names and addresses are divulged and posted on the Internet by their adversaries, it could lead to harassment, injury and property damage. The Secretary and Attorney General Rob McKenna said the voter-approved Public Records Act includes no exemption for petition, and that taking part in the initiative process is a public act of citizen legislating, and that transparency is required.
The high court put the case on an expedited review schedule, with the challenger’s legal brief due by Feb. 25 and the state reply by March 25. State attorneys said it appears likely that the case will get a full airing in April, possibly as early as the 19th. A decision would be expected by summertime.
Reed’s state Elections Division has been under both federal and state ban against releasing the R-71 petitions. Even after the Supreme Court decision is handed down, the state faces a challenge in Thurston County Superior Court brought by initiative activist Tim Eyman.
Voters approved R-71 by a vote of 53-47 in November, upholding the law expanding the rights and responsibilities of state-registered domestic partners, both same sex and heterosexual couples where one or both partners is 62 or older.
Secretary Reed’s said:
“We welcome an opportunity to go to the highest court in the land to defend Washington citizens’ strong desire for transparency, openness and accountability in government, and the public’s belief that our state and local public documents must be available for public inspection. The voters overwhelmingly approved the Public Records Act as part of a sunshine initiative back in 1972 and it has worked very well for nearly 40 years, without the Legislature or voters proposing or approving an exemption for initiative and referendum petitions.
“It is not surprising that the Supreme Court would be intrigued by a nationally-watched case dealing with disclosure, First Amendment considerations and public discourse during the Internet era.
“In Washington, we honor and promote broad participation in civic life, access to voting, freedom of expression, and to use of the right of initiative, referendum and recall, which we have had in our State Constitution for nearly 100 years. We believe the use of `direct democracy’ exists quite well alongside the Public Records Act and the voter-approved law that requires disclosure of campaign donations and expenditures.
“Quite simply, we believe in openness AND participation.
“We firmly believe that participating in the initiative and referendum process is a public act of citizen legislating, with disclosure of petitions required under the framework of our Public Records Act, and that it can be done without violating voters’ constitutional rights, as the 9th Circuit Court of Appeals correctly decided. Signing petitions in malls, county fairs and other public settings and potentially handled and seen by many observers and handlers does not carry an expectation of the privacy we have with voting.
“We are confident that Attorney General Rob McKenna will successfully defend the public’s right to their records, and that our election laws will safeguard against harassment or intimidation of signers.”