This Thursday in a federal court in Washington state, U.S. District Judge Benjamin Settle will, ahem, settle an important question. (Come on, who could resist?)
The matter concerns Referendum 71, a petition to put the domestic partnership law Washington’s legislature passed last April to a statewide popular vote. Should the NOs prevail, the vote would reverse its enactment.
Supporters of the new law describe it as “granting all the legal benefits and protections of marriage (save the legal title) to same-sex partners.” Now the referendum will stay the “everything but marriage” law from going into effect until the state’s voters can determine its fate this November.
The adjoining federal court case has nothing to do with the provisions of this particular referendum, and yet, it has everything to do with the volatility of the debate over same-sex marriage and gay rights. Witness a public policy train wreck: crashing the good government ideals of disclosure and transparency against the political values of encouraging citizen involvement and protecting privacy.
Specifically, Judge Settle must resolve whether Washington state’s Public Disclosure Act, requiring the Secretary of State to publically disclose the signers of petitions, violates First Amendment protections for voters signing a petition.
That is, does it violate the rights of those signers not wanting to be threatened or intimidated . . .
“There have been few precedents on whether the names and addresses of people who sign petitions should be considered a public record,” wrote Ballot Access News editor, Richard Winger, recently. “Some states provide by law that the records are not public, but most states do not.”
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Thus, in most states, any citizen could request (and pay for) copies of the actual petitions turned into the Secretary of State, containing all the names and addresses and often other personal information.
Enter Brian Murphy. He started a website — WhoSigned.org — in essence to “out” the signers of Referendum 71 petitions. He pledged to create a searchable database of all those people who had signed the referendum petition and he encouraged supporters of the domestic partnership legislation to have a “dialogue” with those who had signed the petition.
Unsurprisingly, some petition signers became more than a little concerned about the nature and tone such a dialogue might take.
Larry Stickney, the head of Protect Marriage Washington, which sponsored Referendum 71, accused opponents of taking “the politics of personal destruction to new levels. I am a personal recipient of dozens of obscene and threatening e-mails and phone calls since we filed this.”
Memories of a nasty aftermath to California’s Prop 8 election last November remain fresh. For years, in fact, petition efforts have faced increasing harassment as such streetwork has become the favored new strategy to block a vote. It is what a measure’s opponents do if they fear that they cannot prevail at the ballot box.
It isn’t pretty.
And for the record, the main organizations in favor of the domestic partnership legislation, working for a YES vote on Referendum 71, have clearly repudiated the “outing" tactic of WhoSigned.org.
Stickney’s committee asked the Washington Public Disclosure Commission not to release the personal information of Referendum 71 signers. When the PDC declined that request, the committee, along with two “John Doe” plaintiffs, brought in James Bopp, a nationally renowned First Amendment litigator, to file suit in federal court to block the public disclosure.
Judge Settle has already ruled that opponents of the referendum could see the petitions in order to challenge discrepancies in the count or in the verifying of signers as registered voters. But a temporary restraining order remains in effect for any public release of the names.
This is actually in keeping with the current signature verification process, wherein the advocates of an issue as well as the opponents can observe the Secretary of State’s signature verification, provided “they make no record of the names, addresses, and other information on the petitions.”
But what about the public’s right to know? What about total sunshine? Washington’s attorney general argues in defending the application of the state’s public records law to petitions, that signers are acting in a governmental capacity and should have no real claim to privacy. Take this argument to its illogical conclusion and we would no longer enjoy a secret ballot.
If you ask me, voters signing petitions should not be subject to the same kind of transparency laws as an elected official or a government employee on the taxpayer’s time, and dime. More people engaged in politics is, by definition, a good thing — whether I know everyone’s name and address, or not.
The Federalist Papers, at the time of the ratification debate of our U.S. Constitution, were published anonymously. Today we know the authors. Were James Madison, John Jay and Alexander Hamilton pulling a fast one?
Much of the printed agitation during colonial times was anonymous. Political speech can be very dangerous. That’s why we have a First Amendment, to block every attempt to muzzle the free discussion of our politics.
The State of Washington also argues that while there may be some level of harassment commenced against people who signed petitions for Referendum 71, the threat doesn’t rise to the seriousness of those made against others. In past cases, involving the NAACP, the Socialist Worker’s Party and the Communist Party, federal courts have blocked state laws forcing disclosure.
There’s another angle, too. The AG’s brief argues, “There is no evidence that [Referendum 71 signers] constitute a small minority which has been marginalized or historically disadvantaged relative to their opponents . . .”
Should we ration the right to speak only to those who can show the most current bandages and past scars?
If citizens can sign a petition without that information being cyber-shouted to all and sundy, what would be the harm — More issues to debate? Voters making more decisions?
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