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Don’t bank on ever seeing those R-71 petitions

Post by Patrick O'Callahan on Jan. 15, 2010 at 5:04 pm with 16 Comments »
January 15, 2010 5:32 pm

I’m guessing Washingtonians (and citizens of other states, for that matter) will never again be able to learn the identities of people who sign initiative and referendum petitions. Across the board. Liberal and conservative petitions. Anywhere, U.S.A.

Washington’s fairly recent practice of releasing petition information has been driven by the Attorney General’s Office’s view that it’s a matter of open government and open public records law. Our editorial board agrees with that view.

But those are state laws. State laws get trumped, trounced and trampled when the U.S. Supreme Court decides they conflict with the Constitution. The court’s decision Friday to snatch the R-71 case from the hands of the 9th U.S. Circuit strongly suggests that it smells a First Amendment issue here – specifically the right to anonymous political speech. There’s no other reason it would take up the case.

Over the years, the high court has shown much more interest in expanding the reach of the First Amendment than in championing open government. If this case is framed in terms of open government, the petitions are public. If it’s framed in terms of the Bill of Rights, the petitions are sealed. Right now, I’d put my money on the latter.

Leave a comment Comments → 16
  1. derekyoung says:

    It seems strange to suggest that signing a petition outside a post-office or supermarket, which is then delivered to the organizers of the ballot measure who use that information for their own purposes, is a private act like voting.

  2. jimkingjr says:

    Since 1912, until just a couple of years ago, petitions were not revealed.

    What damage was done by secrecy all of those years?

    No voter was harrassed. No one has ever demonstrated any invalid signatures were counted. What reason is there for stripping the voter of secrecy?

    Open government should have a purpose. Not every public record is open and disclosable. There is a bill in the Legislature to prohibit the release of photos of public employees. Will the News Tribune oppose that bill? Just because they are public records?

    Those who want these petitions released have been very inarticulate in putting forth a valid reason to do so.

  3. reformedliberal says:

    “Not every public record is open and disclosable.”

    Correct. And when such a record is considered not disclosable, often it is to protect the privacy of citizens.

    Anonymous political speech is a central feature of our democracy, and the need to protect such speech trumps anybody’s right to view a public record.

    Mr. O’Callahan conveniently forgets to mention that the release of petitions is a new thing in this state, having only begun just a few years ago. The law didn’t change for that to happen; it began to happen because a state official adopted a novel interpretation of existing law. I offer that this was in error, and a court decision is needed to protect First Amendment rights against such an attack by Washington State.

  4. “No one has ever demonstrated any invalid signatures were counted.”

    But if you prevent access to the records, how would anyone know if they where counted or not?

  5. “Since 1912, until just a couple of years ago, petitions were not revealed.”

    I think we have had access to the records going back more then just a couple of years ago.

    What changed is that access is now low cost, and the information is easily distributed to the public due to electronic media.

  6. LibertyBell says:

    We deal with a right of privacy older than the Bill of Rights-older
    than our political parties, older than our school system.
    Mr. Justice William O. Douglas

  7. jimkingjr says:

    fatuous- your ignorance is abysmal. You can think that we had access going back more than a few years ago, but you think wrong, and ignore the facts.

    And if there is no access tio the voter registration signatures, how does release of petitions allow you to check the official’s work on verifying signatures? Your uninformed opinions are hardly enough reason to violate voters’ privacy.

  8. jimking,

    See initiative 276, Voter approved in 1972.

  9. jimkingjr, I

    A 1998 attorney general’s opinion concluded that the law all along compelled disclosure – even if earlier state officials hadn’t been following it. Washington’s open records policy clearly states that privacy concerns cannot bar the release of a government document unless the information is “highly offensive to a reasonable person” and “not of legitimate concern to the public.”

  10. jimkingjr says:

    fatuous- the 1998 attorneyt general’s opinion did not address petitions- it was a general pronouncement regarding open records. You might choose to familiarize yourself with the court case fromj 1973- after Initiative 276- where a state legislator trying to get access to the petitions overturning a big salary hike for legislators was slapped down and told these were not public records subject to disclosure. No petition was ever released until bureaucrat Sam Reed unilaterally reversed the state’s position- and ignored the court ruling- just a couple of years ago.

  11. villager98 says:

    Petition signatures are gathered in public and it is a public action when one signs. There is no requirement for secrecy in the exercise of free speech. If I want to take actions that affect other people I have no right to secrecy in so doing. That was never the intention of the framers of the constitution and it is ridculous to assume any such right in a free and democratic society. It is cowardly and hypocritical of anyone to seek to hide their efforts to affect the lives of others in the manner these people are doing. If the Supreme Court rules for secrecy, as they probably will, then the referendum should be done away with and only peition to the legislature allowed. The current Supreme Court has been very selective in its decisions about the first amendment and is nothing short of a national embarassment.

  12. jimkingjr says:

    villager98- familiarize yourself with the long history of anonymous public/political speech in this country, including by the Founders. Then you might realize how off base your comment is.

    You can start with the writings of Publius…

  13. LibertyBell says:

    villager98, Since your not from Washington, and a Washington Case, known clearly as:

    In his widely cited dissenting opinion in Olmstead v. United States (1928), Brandeis relied on thoughts he developed in his Harvard Law Review article in 1890. But in his dissent, he now changed the focus whereby he urged making personal privacy matters more relevant to constitutional law, going so far as saying “the government [was] identified . . . as a potential privacy invader.” At issue in Olmstead was the use of wiretap technology to gather evidence. Referring to this “dirty business,” he then tried to combine the notions of civil privacy and the “right to be left alone” with the right offered by the Fourth Amendment which disallowed unreasonable search and seizure. Brandeis wrote in his lengthy dissent:

    “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” [32]
    In succeeding years his right of privacy concepts gained powerful disciples who relied on his dissenting opinion: Justice Frank Murphy, in 1942, used his Harvard Law Review article in writing an opinion for the Court; a few years later, Justice Felix Frankfurter referred to the Fourth Amendment as the “protection of the right to be let alone,” as in the 1947 case of Harris v. U.S., where his opinion wove together the speeches of James Otis, James Madison, John Adams, and Brandeis’s Olmstead opinion, proclaiming the right of privacy as “second to none in the Bill of Rights[11]:26

    Again, five years later, Justice William O. Douglas openly declared that he had been wrong about his earlier tolerance of wiretapping and wrote, “I now more fully appreciate the vice of the practices spawned by Olmstead. . . I now feel that I was wrong . . . Mr. Justice Brandeis in his dissent in Olmstead espoused the cause of privacy – the right to be let alone. What he wrote is an historic statement of that point of view. I cannot improve on it.”[33]:445 And in 1963, Justice William J. Brennan, Jr. joined with these earlier opinions taking the position that “the Brandeis point of view” was well within the longstanding tradition of American law.[11]:26

    Just read Sameul Adams, Aug. 1, 1776, discussing this exact right to privacy, after those mohawk indians had a Tea Party!

  14. LibertyBell says:

    And villager98?

    Why is the Supreme Court, overuling the Federal District Court in San Franscisco, on the judges allowance of u-tube in his courtroom, on gay marrage?

    It’s a Publick Trial?

  15. LibertyBell says:

    Publius #1

    …A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants….

  16. Why is it OK for a political party, or PAC to go to the petitions, obtain my information and bombard me with literature either FOR the petition, or AGAINST the petition, yet it’s NOT OK for me to obtain the names on THIS petition in order for me to protect my family.
    I feel that there is something inherently wrong about a group of people that want to have a separate set of rights and rules for separate segments of our society. I don’t want these people spreading their warped ideals to my children and grandchildren. I want to know who they are. Is my neighbor a member of this group, my child’s teacher, my City Council representative? If I have the right to know where the child molesters are in my neighborhood, then why shouldn’t I know who these people are? To me, they are as big a threat to our community well-being as the Level III molester. Who are they and where are they? I have the right to know and I demand to know.
    Our Constitution states that “all men” are created equal. Why am I not permitted to know who has a contrary viewpoint and wants to change the rights afforded to ALL men by our Constitution?

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