Is petition signing a private act? In advance of the April 21 U.S. Supreme Court hearing, Washington State conservatives have filed a brief calling it private; recently the Washington State AG filed a counter argument claiming it is a public act. The outcome could have impacts far beyond the original controversy, which started over petitions signed in support of a state referendum on gay rights.
An attempt to block the release of the names of people who signed petitions hoping to negate an expansion of gay rights in Washington is a direct challenge to the state’s Public Records Act and people who attach their names to initiatives and referendum have no right to privacy, lawyers for the state argued in a brief filed Thursday with the U.S. Supreme Court.
“Signing a petition is a public act, not anonymous speech. Signatures are gathered in public. A voter who signs a petition discloses his or her identity to voters who subsequently sign the petition, to individuals who look at the petition but choose not to sign, to passersby, to the people who gather the signatures, and to the sponsors of the measure,” the brief written by Attorney General Rob McKenna and others said. “Moreover, a voter has no control over how the information that he or she places on the petition will be used. Names and addresses on petitions can be sold or traded to to other individuals and organizations and used for fund raising purposes.
A conservative group is asking the justices to block the release of the names of the 138,000 people who signed petitions in hopes of overturning the “everything but marriage” same-sex domestic partner law. In November Washington voters upheld the new statute. Gay rights groups have said they’ll post the petition signers’ names online, and some fear harassment or threats if their names are revealed.
The Supreme Court will hear the case April 28 and likely rule later in the year. Last month the conservative group filed its own brief with the high court.
The ultimate decision could have far-reaching impacts, not just on the state’s initiative and referendum process, but also for other “open government” laws like the disclosure of who contributes to political campaigns, and how much they give. Legal scholars nationwide are following the case.
In September U.S. District Court Judge Benjamin Settle ruled that releasing the petition names would violate those people’s constitutional rights. Settle said the petition signers were engaging in political speech – which people are allowed to conduct anonymously under the First Amendment. However in October 9th U.S. Circuit Court of Appeals overruled Settle (click here to read the decision), saying signing a petition in public is not an anonymous activity and people should recognize that other petition signers could see their names and government officials will be verifying their identity.
The Supreme Court stayed that decision.
The attorney for the group seeking to keep the names private, James Bopp, has said people have a right to participate in the political system without the government compelling them to identify themselves.
Bopp, the general counsel for the Indiana-based James Madison Center for Free Speech, says it’s appropriate for governments to check and make sure initiative and referendums have enough signatures to qualify for the ballot, but releasing that information to the public would violate people’s rights.
Secretary of State Sam Reed and McKenna support the release of initiative and referendum petitions under terms of the Public Records Act that state voters approved in 1972. Reed describes the petitions as the voters’ way to take part in a public process of citizen legislating, and not like the private act of casting a ballot.
“Sponsors’ legal theory applies to all referendum petitions, and would apply equally to initiative, recall and candidate nominating petitions,” the state’s legal brief said. “Under the Sponsors’ theory, no set of circumstances exists under which the PRA would be valid in requiring disclosure of petitions signed by voters.”
The Supreme Court action will affect not just the R-71 signatures but a lawsuit brought by prolific Washington initiative promoter Tim Eyman. Last year he sued to prevent the release of names of people who signed other petitions for state initiatives and referendums. A Thurston Superior Court has blocked that information, pending resolution of R-71.