Attorney General Rob McKenna and Secretary of State Sam Reed depart tomorrow for D.C. to prepare for next week’s Supreme Court case, Doe v. Reed.
The case will decide the constitutionality of Washington’s 1973 Public Records Act as it pertains to the release of the names and addresses of those who signed the petition to put Referendum 71—which would have rolled back the domestic partnership rights of gay and lesbian couples—on the November 2009 ballot.
In other words, the question the court will consider is this: Can a bunch of citizens sign their names and addresses to an initiative that would circumscribe the rights of other citizens, and then demand that those signatures and addresses not be made public?
McKenna and Reed, who will be arguing that petition signatures should be public information, held a “media availability” session with reporters this afternoon to outline the history of the case, their strategy for next week’s arguments, and their legal rationale for opposing the R-71 sponsors' position. (The R-71 sponsors argue that making the names and addresses of signatories publicly available will have a powerful chilling affect upon participation, and that the Supreme Court should instead treat petitions as protected core political speech, much like secret ballots.)
You can find McKenna’s multi-pronged legal strategy in the jump.
1. McKenna argues that the R-71 advocates are issuing a "facial" challenge to the Washington State Public Records Act, which, in McKenna’s words, “would affect all petitions for all referenda and initiatives and quite possibly other measures as well.” A facial challenge is basically an attempt to prove that a particular statute is always unconstitutional, under any circumstances whatsoever. Thus, if the Supreme Court rules in favor of the opposition next week, bye-bye Washington State Public Records Act. McKenna contends that the act, which is meant to grant voters easy access to government records, applies to every aspect of the initiative/referendum process, up to and including petition signatures.
2. McKenna also contends that the very act of signing a petition empowers the voters to act legislatively. “When a citizen signs an initiative position, that voter is essentially substituting himself, or herself, for the legislature—they are acting in a legislative capacity,” McKenna said today. Thus, signing a petition, as a legislative act, is not core political speech. Rather, it empowers a voter beyond the basic rights provided in the Constitution.
3. The final prong of his argument is that the public has a very strong interest in government accountability, and in knowing who has a hand in calling for an for an election, suspending a law, etc., through the referendum or initiative process—and in preventing such a ballot measure from qualifying with fraudulent or insufficient signatures. “In the balance those strong public interests, governmental interests, outweigh the very modest impact upon petition signers that disclosure produces,” McKenna said.
Both men seemed confident that the Supreme Court would rule in their favor. McKenna (who is a Republican) did not foresee the Court’s present right-leaning majority as an obstacle, citing an aspect of the recent Citizens United case to support his contention that the vote will not fall along left/right ideological lines.
“We expect the court will uphold the public interest of transparency,” McKenna said. “They did so with respect to campaign finance as recently as the Citizens United case. By a vote of eight-to-one they held that corporate contributions and expenditures are still subject to disclosure.” (The heart of that case was much more contentious, as the conservative faction narrowly overturned a century old consensus by concluding that corporations have the same speech rights as people.)
This is McKenna’s third case before the United States Supreme Court. The first was a 2007 anti-union case about the political use of dues money, and the second was a 2008 decision to preserve the Top 2 primary initiative. He won in both of those prior appearances. Nevertheless, McKenna is prepping heavily. He has held two mock Supreme Court appearances in Washington State, and plans to hold two more in D.C.