Opinion - northwest_view

POSTED: Friday, Oct. 02, 2009

Judges must uphold openness of records in initiative case

Attorney General Rob McKenna has persuaded the 9th Circuit Court of Appeals in California to fast-track his appeal on the release of the names of voters who signed petitions in support of putting Referendum 71 - the gay rights issue - on the Nov. 3 general election ballot.

Let's hope the appellate court judges reverse the lower court and open the referendum petition signatures to public inspection and at the same time uphold the state's Public Records Act.

The referendum, which was filed in an effort to overturn a new state law granting same-sex couples the same financial and health care rights enjoyed by heterosexual couples, has been cleared for the ballot. But the signature question is an important matter because it affects the public's right to know.

A little history.

This year the Legislature passed Senate Bill 5688, which grants same-sex domestic partners all of the rights of married couples except the right to marry. The bill, one of the most controversial of the 2009 legislative session, applies to same-sex couples as well as unmarried heterosexual couples in which one of the partners is at least 62 years old.

The law adds domestic partnerships to all areas of state law where only married couples are mentioned. The laws range from labor and employment rights to pensions and other public employee benefits.

Social conservatives challenged the law by collecting signatures on Referendum 71. Voters who agree with the "everything but marriage" law will vote to approve Ref. 71 on Nov. 3. Voters who want to overturn the legislation will vote to reject Ref. 71 at the general election.

In a clear effort to dissuade voters from signing the referendum, gay rights supporters belonging to a grassroots organization - whosigned.org - announced plans to publish the names of registered voters who signed the referendum petition. Spokesmen said they hoped the list of names would lead to conversations between neighbors about the legislation. They said the list would give gay rights advocates the opportunity to educate individuals about the need for equal protections under the law.

Protect Marriage Washington, the political campaign challenging the expansion of domestic partnership rights, saw things differently. Campaign officials said the public release of the petition signers' identities would put them at risk of harassment, amounting to an unconstitutional infringement of free speech rights. Larry Stickney, one of the Protect Marriage organizers, said he was subjected to threats and harassment for his involvement in the referendum. The campaign also said it had heard from supporters who didn't want to sign the referendum petition for fear of reprisals.

U.S. District Judge Benjamin Settle, a native of Olympia, issued a temporary order barring the release of the names of referendum signers and this month issued an injunction keeping the names secret for now. Settle, who was a Shelton attorney before he was appointed to the federal bench in 2007, said signature petitions for R-71 should not be released because such a release would likely chill the First Amendment rights of the signers, who claimed they could be subject to harassment.

Settle said people have a right to participate anonymously in the political process, and the state's Public Records Act is likely unconstitutional because it abridges that right.

The decision rightfully alarmed state officials and public records advocates, who said Settle misinterpreted Supreme Court precedent and would eviscerate open government laws.

Seattle First Amendment lawyer Michele Earl-Hubbard, who frequently represents news organizations, called Settle's suggestion that he would strike down the Public Records Act "very, very terrifying," and said his reading of the case law was incorrect. "The public has a right to know whether these are valid signatures," Earl-Hubbard said. "Are they living people? Are they dead people? Do they live in the right jurisdiction? I don't know how in the world you can test petitions if you can't see the names. It totally destroys the political process."

Attorney General Rob McKenna agrees and has successfully petitioned the appellate court in California to hear Washington's case. A hearing is set for Oct. 14 in Pasadena. Each side will have 15 minutes to present its case.

"We believe the names of those who sign referenda and initiatives are public record and the state has a history of releasing this information," McKenna said. "We intend to vigorously defend our public records law in this matter as well."

Secretary of State Sam Reed, the state's top election officer, is in full agreement. "Government documents are public records and they should be made public upon request," said Reed's spokesman Brian Zylstra.

Let's hope the appellate court agrees that there's no room for secrecy in elections. Secrecy breeds mistrust and voter mistrust has the potential to undermine the entire electoral system.

This editorial reflects the opinion of the editorial board of The Olympian newspaper in Olympia.