A frontal assault on open government

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 – whosigned.org – 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 whosigned.org. 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.