State fights for disclosure of R-71 petitions
The state Elections Division soon heads to federal court to try to clear the way for public release of Referendum 71 petitions.
Deputy Solicitor General James Pharris, who represents the Secretary of State, has filed the state’s response to the continuing effort by R-71 sponsors to block disclosure of voters who signed their petitions. The sponsors, Protect Marriage Washington, asserting First Amendment rights and seeking protection against potential harassment or harm to signers, obtained a temporary order on July 29 in U.S. District Court in Tacoma that blocked the scheduled release of the petitions to five groups that have submitted public records request.
The full hearing on the merits is in Judge Benjamin Settle’s court on Sept. 3.
Pharris argues that the Secretary of State views the petitions as a releasable public record and that there is no exemption authorized under the voter-approved Public Records Act. Sponsors cite no authority for the notion that the First Amendment shields the names of voters who have voluntarily submitted to an inherently public process, he writes. When voters sign a petition, their names and addresses are available to sponsors and potentially many others, including the government, and is not a private act, he adds.
Courts have carved out only narrow exceptions to the disclosure laws, to protect marginalized minorities with unpopular views, but in this case, sponsors can’t show that they have that problem, Pharris says. Sponsors gathered 137,000 signatures in just 68 days and hope they have a majority of Washington voters behind them if R-71 makes the ballots, he writes. He also says the sponsors haven’t made a case that genuine harm would befall signers whose IDs are released. A similar attempt to block disclosure of gay marriage foes failed in California, he notes.
15 thoughts on “State fights for disclosure of R-71 petitions”
SLOW DOWN and get it right. If you speed through this process it will all be for nothing. The count HAS TO BE VERIFIED so make sure it is done with integrity and not such a rush that this is just costing money and not getting accurate results!!!
The lack of timely release of these signatures is particularly distressing in light of the probability that this initiative will qualify by the slimmest of margins.
Nobody should be harassed or intimidated for having signed a petition, but the possibility of intimidation is not grounds for trampling the public’s right to full disclosure.
The State should consider any legal means to vacate this judge’s order. In this case, the delay of public disclosure is a grave abrogation of public rights. Indeed, the Washington State Supreme Court has recently been quite clear that a delayed response to a public disclosure request is not tolerable.
Hi Mr. Reed and staff,
Thank-you for the careful attentiveness to detail and accuracy in counting and checking the R-71 signatures,
Ben Alexander
I understand there’s been an unusual push over the last few days to speed up the signature checking process, and an equally unusual increase in the rejection rate. This concerns me. Better to get it right the first time and honor the wishes of the people, than to rush and show disrespect to the people.
This is not to denigrate the integrity of those doing the checking, but I fear that if urged to extra speed their work will tend to be less than accurate.
Please keep it slower and correct.
I’m glad the state is stepping in to do its duty, hopefully preventing the initiative process from becoming secretive and shadowy.
I also want to point out that the rate of checking has not changed, for those interested. They are still producing the same number of signature checks per checker per shift as they were at the beginning. If anything, the rate of release has backed off slightly by several dozen per shift.
I also want to point out that the majority of the call to “slow down” was in light of a revelation on one of the sponsors’ blogs saying that he received word from an on-site observer that a relative of the other sponsor’s name was deemed invalid due to non-registration.
It further continues on to call for the state to refresh its voter registration list.
David Ammons: Can observers report back to those who signed the petition to request that they register to vote after observing their name being invalidated? Are observers able to note the name and other identifying information of those being checked?
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It appears that the increased pace of signature validating is resulting in more signatures being thrown out. This is an important social policy that deserves spending the time required to ensure every voter’s voice is heard. With the threats used by R-71 foes to publish the names of signers it’s hard to believe that anyone would bother to sign the referendum if their signature is not valid. I would expect a much lower rate of error than the numbers I am hearing.
Phillip – Most of the rejected names are not registered. They are likely not even real names/addresses (i.e. Mickey Mouse, 23 Brown St). I don’t think Mickey Mouse has to worry about threats. The other 10% of the rejects are “no match”. They could be people who wrote a friend’s name and tried to fake their signature. I’m sure the “friend” would like to know that someone forged their name.
So, please don’t think that many of the invalid signatures are simply people who did an “oops” and wrote their name wrong 🙂
In any case, I’m sure your comment will be removed as you are posting comments that endorse the ballot proposition.
Dave Ammons,
Today’s posting is headlined “State fights for disclosure of R-71 petitions”. I have read your legal brief that was filed with the court last week, and it was very good. However, I have the following questions, and would hope that you can provide answers ASAP, while the counting process is still continuing:
1) Under the Federal Rules of Civil Procedure that control here, “The [temporary restraining] order expires at the time after entry — not to exceed 10 days — that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.” This rule makes it clear that a TRO can be issued ONLY for 10 days — and it can be extended ONLY for an additional 10 days (ie, “a like period”) and ONLY for “good cause”, or if the adverse party (ie, the state) “consents to a longer extension”. In this case, the TRO was issued on July 29, 10 days would be August 8, 20 days would be August 18, and yet the period of the TRO is 36 days until Sept 3! So, my questions are:
A) Did the state consent to a TRO to be issued for 36 days, rather than simply 10 days + an additional 10 days (ie, 20 days total)?
B) If the state did not consent to a 36-day TRO, then TRO issued by the court does not appear to explain what “good cause” exists for extending the TRO beyond 10 days, and thus the order itself seems deficient. Can you explain why the state has not gone into court and raised the question of, on what basis, the court issued a 36-day TRO — rather than the maximum 20 day TRO permitted by the rules (unless the state agreed to a longer period than 20 days)?
If the state really is fighting for disclosure of the signatures, it would seem that contesting a 36-day TRO would be the first place to start — rather than waiting until Sept 3 when there is a court argument. In fact, the normal 20-day expiration period for TROs would have expired a yesterday, so there would be no order prohibiting the SoS from public release of the signatures today while the counting is still going on!
2) The TRO issued by the court says that the defendants (ie the state) did NOT appear at the TRO hearing, and also that one factor the court considered in granting the TRO was “defendant’s failure to appear or otherwise object to this motion.” So my questions are:
A) Did the state really fail to attend the TRO hearing? Why?
B) Did the state really fail to make any objection to the TRO motion? Why?
As you can imagine, it is troubling if the state really did not formally oppose the grant of the TRO motion.
3) The TRO issued by the court says, at the end of the order, that defendants (ie the state) may apply to the court to modify the schedules set by the court, “including the expiration date of the TRO”. So, in essence, the court INVITED the state to ask the court to allow the TRO to expire before Sept 3 — in particular, with all of the comments that the SoS has received about third-party efforts to check signatures on the petition, and with the SoS himself admitting that this will be very very close, it seems like a perfect opportunity for the SoS to ask the court to dissolve the TRO now that the normal 20-day TRO period is over and to ask the court to substitute August 19 or 20 for Sept 3 as the TRO expiration date. So, my question is:
A) Why doesnt the state take the court up on its invitation to ask that the expiration date of the TRO be modified to an earlier date — especially if it’s true that the state never even objected to the TRO in the first place?
The bottom line is that you’ve done a very good job in your memorandum filed last week, explaining why the signatures must be released. Now, how about asking the court to change its TRO expiration date, especially since the expiration date is way beyond the 20 days allowed by the federal rules, there was no finding of ‘good cause’ in the TRO order for extending the TRO beyond even 10 days, and there continues to be great public interest in seeing the signatures while the counting is still going on — not just when the counting process is over. If you do this, rather than wait until Sept 3, then the title of the blog would be more correct when it says “State fights for disclosure of R-71 petitions.”
Thanks in advance for answering these questions. Could you please specifically answer each question: 1A, 1B, 2A, 2B and 3A?
thanks for the comments, people. i trust you have spotted my later blog post dealing with questions re the speed and integrity of the process.
AJ– the observers can’t write down voter names and take them outside the building (or photograph with cellphone cameras). if they spot what they think is an error in the checker’s decision, they write a note to the supervisor listing volume of line of a situation they want to flag. these are indeed investigated, most helpfully when it came to our attention that people who registered to vote after the date that had been loaded into checkers’ computers were being rejected as “not found”. now we are checking for recent registrations.
Mr. Ammons, Gary Randall clearly writes on his blog that the checker named Valerie spotted a name and reported it to Larry Stickney, off-site. Not a supervisor. By your own admission, the checker broke the rules.
A note to Paul, due to some very serious threats by some who are against this initiative, there is absolutely no reason to release the names of petition signers to the general public. There is no reason for you or I to know the names of these people at all, the only thing that should be done is a verification of these people as qualified voters, it does no good to infringe on a citizens right to privacy in his beliefs. This is exactly like a vote. You and I have the right to a secret ballot when we vote, why should voicing your opinion via an initiative signing be any different. This opens the doors to harassment of private citizens and their right to free speech. There are some who have publicly spoken to invite physical harm to those who may be for this initiative, this does not sound like the America I grew up in. I say no to releasing the names of petition signers to any one except those who are doing the validation process. And this should hold true of any initiative signing, not just R-71
Mike Stickney, correct me if I’m wrong, but isn’t signing a petition for a referendum simply asking for a vote and not an expression of belief?
You say we should honor the voters and such, but initiatives and referenda are public records due to an initiative signed for and approved by Washington voters in 1972. There existed a compelling need to prevent a secret and obscured manipulation of public policy in the 70s that necessitated the corresponding initiative. It strikes against the spirit of Washington itself to decide that we should be allowed to initiate a public vote via private petition. What was true in the 70s is certainly still true today, as we’re finding recently that initiative sponsors and governments alike are slipping in their honor-bound duty to transparent governance. We should not be so quick to advocate a secret and shadow-cloaked form of policy control.
I have to also add finally that if your assertions were correct, we’d find that the disclosure of more petitions would be blocked, but that’s simply not true– it’s only happened once in the entire history of the R&I process.
Washington State has had—much to its credit and that of far-sighted citizens almost four decades ago—and continues to have a strong commitment to openess in government and transparency in the conduct of the people’s business, epsecially campaigning. While the federal government and many other state governments talk about open government and transparency the voters of this state chose to enshrine their belief in both in the law of the state. That was a wise decision in the 1970s and it remains a wise choice today. The People of Washington have a RIGHT to know who is paying the cost of the obscenely-expensive campaigns waged on behalf of candidates AND issues, including controversial referenda.
It’s worth speculating where we would all be had our forefathers not been willing to place their signatures on the Declaration of Independence back in 1776. . . a document they intended to be made public. The danger they faced was, I would argue, considerably greater than that faced by any R-71 signers in 2009
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