by David Ammons | June 24th, 2010
Washington’s big win in the Supreme Court is great news for the cause of open government and transparency, say Secretary of State Sam Reed and Attorney General Rob McKenna.
Ironically, the situation that prompted the federal case, still remains uncertain. Protect Marriage Washington, a group that sought to overturn the state’s new domestic partnership law last fall, sued Reed in an effort to block him from releasing petitions, as is his policy under terms of the voter-approved Public Records Act.
The group won an injunction in U.S. District Court last September, after asserting that disclosure would violate their First Amendment right to anonymous free speech. The state won on appeal in the 9th Circuit Court of Appeals, and now the high court has said that, broadly speaking, release of signatures is constitutional.
Here’s the catch: As expected, the court also said that individual campaigns, such as the Protect Marriage group, can ask a judge for an injunction against release, based on the “reasonable probability” that release would subject signers to harassment or injury. The R-71 case specifically, thus goes back to District Court in Tacoma. McKenna says challengers have “a steep hill to climb” and that he doesn’t believe they can show that kind of proof.
Another roadblock to releasing other initiative petitions: Initiative activist Tim Eyman has a case in Thurston County Superior Court asking the courts to bar release of all petitions. That case has been on hold while the Supreme Court case was under way. At this point, it would appear that Eyman or any other challengers would have to make a targeted case for keeping certain petitions secret.
Secretary Reed’s statement:
“This is a big victory for the people of Washington state and the cause of government transparency and accountability here and in other states. I am delighted.
“Nearly 40 years ago, our voters overwhelmingly approved a `sunshine’ initiative that gave us a strong Public Records Act In R-71 and disclosure laws. It has worked exceptionally well and is part of the political landscape now. People expect and demand no less.
“We believe in open and accountable government in Washington and today’s remarkable 8-1 Supreme Court ruling makes it clear that we are on firm constitutional footing, as Attorney General Rob McKenna had asserted on our behalf.
“The matter of disclosing petitions of particular initiatives isn’t over, since sponsors of Referendum 71 and potentially other campaigns have the right to pursue their claim that petitions should remain confidential due to threats of harassment or intimidation. Absent a clear case that brings forward hard evidence of harassment, and not merely the normal rough-and-tumble of campaign discourse, we would expect to prevail, and to eventually be permitted to release petitions through the normal Public Records Act requests.
“Even as we welcome today’s ruling, I understand privacy concerns in the Internet era and the desire to participate in our initiative and referendum process without fear of harassment or retaliation. I will continue to speak out for civility in our citizenship and will firmly insist that petition signatures not be used in a threatening or inappropriate way. We have a long history of debating and voting on some very difficult and personal issues in a civil way, and I believe we will continue to do so. We do not want to ever chill voters’ right to take part in what we value as `direct democracy.’”