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R-71 petition secrecy: It’s about government integrity

Post by Patrick O'Callahan on Sep. 12, 2009 at 6:14 pm with 6 Comments »
September 17, 2009 9:03 pm

This editorial will appear in tomorrow’s print edition.

Last week’s court injunction against the release of R-71 petitions may look like it’s all about that hotly disputed measure.

Not so: It’s more like a frontal assault on Washington’s tradition of open government. May the attorney general’s office speedily prevail in its appeal.
U.S. District Judge Benjamin Settle on Thursday essentially ordered the secretary of state’s office to seal the signatures on the petitions, which triggered a November referendum to repeal Washington’s newly expanded domestic partnership law.
It’s a “preliminary” injunction, but Settle’s order is so emphatic that it’s likely to stick permanently if the issue is left in his hands.

This is a textbook example of how hard cases can make bad law. The R-71 sponsors who sued for secrecy could cite some uncomfortable facts.

One was last year’s spate of harassment of individual supporters of California’s Proposition 8, which reversed that state’s supreme court decision to legalize gay marriage. Another was the creation of a Web site in Washington – – whose clear purpose was to intimidate would-be supporters of R-71 by threatening to post their names. Its creators want gay-rights advocates to confront signers in “uncomfortable” conversations.

Thanks, guys, for this wonderful ruling.

It would have been one thing if Settle had offered the R-71 folks some narrow protection against the likes of The effect would at least have been limited to petition drives involving a real potential for harassment.
Instead, Settle reached for an argument that would effectively keep all signatures on all petitions secret all the time.

He relied on a 1995 U.S. Supreme Court decision barring states from requiring that all campaign fliers carry the names and addresses of their authors. “Anonymity is a shield from the tyranny of the majority,” Justice John Paul Stevens wrote for the court.

But Settle’s inventive use of that precedent gave short shrift to the reason citizens need access to petitions: independent scrutiny of their handling and verification by government officials.

According to the judge, apparently, “the state’s own verification process” does the job of ensuring that the initiative and referendum process is kept honest.

That’s dumbfounding logic. The state is precisely what we’re worried about here.
Secretary of State Sam Reed may be a trustworthy guardian of the process, but he’s only one man. What if some corrupt successor or underling wanted to game the verification procedures behind doors locked shut on the pretext of anonymity? They’d have little fear of being called out by vigilant citizens checking behind them.

This isn’t an R-71 issue; it’s an integrity of government issue. If Settle’s logic is allowed to harden into law, some ginned-up constitutional demand for anonymity could start trumping open government right and left.

Hello, 9th Circuit? We’ve got a problem.

Leave a comment Comments → 6
  1. jimkingjr says:

    Wait a minute here. Exactly how will release of the petitions provide any public benefit? The News Tribune joins in the specious argument that the release is necessary to double-check the verification process. Please explain how that would be accomplished absent the release of original signatures from voter registrations? Or in any timely manner.

    Why must you support chilling the political process. Most people participate in politics privately and anonymously- they talk in private, they vote in private- they even blog anonymously. For almost all of the history of the initiative and referendum process, petition information has been held to be private. The law even specifically prohibits observers to the verification process from taking notes regarding any information on the petitions.

    The rightb to initiative and referendum was enshrined in our state constitution early in the second decade of the last century- almost one hundred years ago. The Open Records Act was adopted by initiative over thirty-five years ago. Have you even researched when the first attempt was made to make the petitions public record? I thought not.

    You should remember the binding precedent will not be made by the so-very-often-overturned 9th Circuit. It will be made by the United States Supreme Court. Afraid of what binding precedent might made? Then urge that the case be dropped, now, and stop pushing to chill the people’s First Amendment rights.

  2. Let’s change a little wording just to make the debate more interesting.
    Say someone initiates a petition to change the State law and takes away certain rights from Asian or Pacific Islanders. Let’s say that because their eyes are shaped differently from those of us that have “normal” eyes, they want the law changed to force these “different” people to take a more stringent eye test at the DMV and they can only drive in daytime hours.
    Stupid?? Yes. But how is it different? Shouldn’t those of us that know better have access to the names of the people that think this way? I wouldn’t want my young children near someone of such narrow, bigoted thought, and I should have a right to know who thinks in such a hateful way.
    Nobody has been threatened with any form of violence at all. Things were written and blown out of proportion so that the cause of hatred can be upheld.
    I want to know who signed and who supports this kind of hateful thinking. If they are in business, then I have a right to refuse to spend my money at their place of business.
    I want the names. I have a right by law to have access to them. Stop the debate.
    Additionally, I WELCOME a vote on R-71. I hope that the rest of the people in this State feel the same as I do about taking the rights away from fellow citizens. It would be a sad reflection of our moral fibre otherwise.

  3. villager98 says:

    If Judge Settle thought the state’s verification process ensured the honesty and integrity of the referendum he might have sought evidence to support his assumption. Observers noted hundreds, maybe thousands, of questionable actions during the process. The validation process was legally questionable on at least two issues and apparently in violation of the RCW. Had Judge Specter in King County had jurisdiction the ruling probably would have been opposite of the ruling in Thurston County. A decision not to appeal closed the issues for now but it needs to be addressed by either a Court or the Legislature.

  4. ALakewoodConservative says:

    Had the shoe been on the other foot, and homosexual “special rights” advocates received the amount of death threats that R71 protect marriage WA leaders have received, US Marshalls would be camped on their doorstep protecting them.
    To signers of the R71 petition: if this ruling is overturned and you are harrassed by the various “tolerant” homosexual groups, be sure to file a police report immediately!

  5. jimkingjr says:

    This isn’t about gay rights, marriage, or anything else- it is about the people’s First Amendment rights on any petition. Those of you- on both sides of R-71- deserve each other, and I honestly hope there is an eternal closet you will all find yourselves locked in, together, to hash it out forever- far away from the rest of us. If there is any eternal justice, Tim Eyman will be locked in there with you. As will the sophists in the press who fight to prevent reporters from fulfilling civic duties, but work overtime to strip the rest of us of our First Amendment rights.

  6. I agree with LakewoodConservative in that these are “special rights”. They are very special. They are the same rights that you and your spouse and me and my spouse have had since the first day we said “I do”.
    They are the same rights that I fought on three continents for and was wounded twice in protecting. I didn’t fight to preserve those rights just for you and for me. I did it to protect the rights of ALL of our citizens, be they Liberal, Conservative, Catholic, Jew, Muslim, Hindu, Black, White, Hispanic or anyone else. Why do we seperate Gay and Straight in that summation?
    When my younger brother died from the effects of AIDS, his partner of nearly ten years wasn’t allowed to visit him after 7PM because he wasn’t family. Had it not been for a compassionate nurse that bent the rules because she believed them to be wrong, he would have died alone. Is that the humane Christian thing to do or to behave? What would Jesus do? He’d be pretty pissed off at the way that some of you are behaving in “His name”. You’d be locked in that closet that jimkingjr speaks of.
    Think about what you’re doing. Taking rights away. Is THAT what our Constitution is all about. Are Gays now the “3/5 man”?

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