Most people discussing the Referendum 71 lawsuit obsess over whether Washington State should release the identities of citizens who signed the petitions to repeal last year’s “everything but marriage” gay rights law.
But as Wednesday’s arguments before the U.S. Supreme Court made clear, the campaign to put R-71 on the ballot is only a tiny part of what’s at stake here.
The arguments pitted public disclosure opponent James Bopp Jr. against state Attorney General Rob McKenna, who was defending Washington’s Public Records Act. If Bopp ultimately prevails, the rollback of disclosure would only begin with R-71.
He and the groups he represents claim that the release of signatures is inherently a violation of the signers’ First Amendment right to anonymous political speech. So if five of the nine justices buy into the full reach of his arguments, government agencies will be constitutionally forbidden from telling the public who signed initiatives and referendums. Disclosure would be barred for any initiative or referendum, on any issue, in any state, city or other jurisdiction.
Most of the furor over this case has focused on the petitioners’ fears of personal harassment from gay-rights advocates, several of whom idiotically triggered the whole legal battle by threatening signers with “uncomfortable conversations” and the campaign sponsors with outright harm.
But McKenna, defending the Public Records Act, put his finger on the core issue: the public scrutiny necessary to ensure government integrity.
Conceivably – as Justice Antonin Scalia noted – an initiative could raise the hackles of the secretary of state, in which case citizens might question his office’s ability to handle the signature count fairly. It’s not enough that the government be able to verify signatures; the public must be able to verify the government’s verification.
Replied McKenna, “That goes to the heart of the Public Records Act, Justice Scalia. Trust but verify. The people did not leave to the state the idea that, ‘Well, we will let you know what you need to know.’”
Also: “This isn’t just about fraud – fraud is very important – it’s also about finding plain old mistakes which the state, secretary of state or auditor has missed.”
Washington may value open government more than most other states. We hope most of the justices also understand its importance. McKenna already appears to have a strong ally in Scalia, who dissented from prior rulings that guaranteed a right to anonymous politicking.
If the court sides with McKenna, a state court may yet decide to prevent the release of the R-71 petitions. Genuine threats of harassment or violence have triggered confidentiality in the past.
But that’s a sideshow, legally: The big question is whether public disclosure itself will survive in initiatives and referendums. With the hearing done, the only thing left to do is hope for the best.
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