R-71 case helps keep government accountable to people
The act of signing a referendum or initiative to place it on the ballot is an act of legislating, argues Washington state Attorney General Rob McKenna. Therefore the signatures of people who sign the measure are a matter of public record.
Special to The Times
SHOULD average people maintain the right to double-check the work of elected officials and other individuals seeking to influence state law, or should lawmaking on critical issues, from taxes to marriage rights and beyond, be conducted in secret? That's at the heart of an issue before the U.S. Supreme Court Wednesday.
The question is whether the names and addresses of those who sign an initiative or referendum should remain a public record. Most government records are publicly available because Washington voters demanded it — through the initiative process — nearly 40 years ago.
State law emphasizes openness and transparency in government. All documents are public unless specifically exempted by the Legislature. In this case, the Public Records Act provides no exemption preventing the release of the petitioners' names and addresses.
The petitioners in this case suggest the public should not have access to information about who signed Referendum 71, a 2009 ballot measure regarding domestic partnerships. They worry that if the names and addresses of those who signed are publicly available, people will shy away from participating in the referendum process.
But petitions are not secret ballots, like those we cast in an election. Petition signers put their names, addresses and signatures on the same sheet as dozens of others, often in front of a busy big-box or grocery store. These petitions are routinely copied by sponsors, who keep them for outreach purposes. In contrast, general election ballots are sealed in specially secured envelopes.
We believe a federal judge misapplied constitutional law in holding that the names on petitions are "anonymous political speech." The judge made no findings of harassment, intimidation or violence toward anyone who signed R-71. We appealed this decision because such a far-reaching ruling strikes against government transparency. The 9th U.S. Circuit Court of Appeals agreed with us, the petitioners appealed and we'll both present our arguments before the highest court in the land.
Under our state constitution, the referendum and initiative processes empower Washington voters to substitute themselves for the Legislature. They may send voter-authored laws to the Legislature or to the people. And as voters did with R-71, they may subject a law adopted by the Legislature to a public vote. We don't allow legislators to secretly sponsor bills. Nor should we allow members of the public, when they substitute themselves for legislators, to sponsor laws in secret.
Think, for a moment, about the implications of putting initiative and referendum petitions behind lock and key. Currently, if a member of the public, including reporters and bloggers, suspects that signatures were gathered fraudulently, they may request to see them in order to independently verify that those signatures are from legally registered voters.
If that information is shrouded from public view, all of us will be forced to put our complete trust in signature gatherers and state government. We'll have to assume they are running the process appropriately. Washingtonians have a stellar secretary of state in Sam Reed. But are you willing to put your absolute confidence in every future holder of that office?
Several initiatives are being circulated for the 2010 ballot. One creates an income tax. The latest Tim Eyman initiative aims to roll back certain taxes. If these or other measures gain enough signatures, should the public be able to examine the petitions to ensure these initiatives have been properly placed on the ballot? Or should Washingtonians be required to give total authority to the government and signature gatherers as major decisions are made about public policies that impact everyone?
The Public Records Act says that the public has a right to double-check government's work. This is especially important when it comes to elections and ballot measures. I'm proud to defend this law, and the openness and transparency it provides, in our nation's highest court.Rob McKenna is Washington state attorney general. He is arguing on behalf of Washington state in the case of Doe v. Reed before the U.S. Supreme Court Wednesday.