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A partial victory for disclosure in the R-71 case

Post by Patrick O'Callahan on June 24, 2010 at 7:43 pm |
June 24, 2010 5:55 pm

This editorial will appear in tomorrow’s print edition.

One legal skirmish has yet to be fought, but Washington won the major battle over its Public Records Act on Thursday.

With a crushing 8-1 vote, the U.S. Supreme Court ruled that there is no sweeping constitutional right to sign petitions in anonymity. The decision doesn’t force the release of the signatures that put Referendum 71 one the ballot last November – that’s the unfought skirmish – but it repudiates a claim that could have sealed all petitions on all issues, in Washington and everywhere else citizens enjoy the right to initiative and referendum.

This lawsuit was brought by opponents of last year’s “everything but marriage” domestic partnership law, who launched a petition drive to reverse the measure at the polls. They have asked the courts to prevent the Secretary of State’s Office from releasing the identities of Washingtonians who signed the petition, arguing that disclosure would put the signers at risk of harassment from gay-rights advocates.

It didn’t help that a few gay-rights advocates actually did threaten identified signers with “uncomfortable conversations,” nor that others reportedly threatened the initiative’s sponsors with physical harm.

But the stakes in the lawsuit were far bigger than R-71. It challenged the constitutionality of any disclosure on the grounds that petition signers had a First Amendment right to anonymous political expression.

Writing for the court, Chief Justice John Roberts rightly rejected that sweeping claim. He noted that Washington has good reasons to allow public scrutiny of petitions, including the possibility of fraudulent signatures and “promoting transparency and accountability in the electoral process.”

That’s a relief to defenders of the “transparency and accountability” mandated by the state’s Public Records Act.

But the R-71 lawsuit is by no means dead. Thursday’s decision addressed only the argument that the First Amendment categorically requires the sealing of all petitions everywhere. Roberts cited earlier rulings that a particular group could be exempted from disclosure rules if it demonstrated a likelihood that its members would be threatened if their names were made public.

Whether that applies to the R-71 signatures will likely be argued in a trial court, and most of the justices showed a willingness – an outright enthusiasm, in the case of Samuel Alito and Clarence Thomas – to exempt petition signers from the Public Records Act if a trial produced concrete evidence that they might be harmed.

So Washingtonians who oppose a petition drive – about gay rights or anything else – bear some responsibility here. In the eyes of this court, personal threats are the enemies of public disclosure. Anyone who doesn’t want petitions sealed shouldn’t help their opponents build the case for sealing them.

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