Tomorrow, at 7 a.m. Pacific, Attorney General Rob McKenna will face the Supreme Court of the United States and make his arguments in defense of Washington State’s Open Records Act.
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The case before the court, Doe v. Reed, will decide whether signing a petition for a referendum or initiative is a protected form of political speech (just like casting a ballot) or whether it's more like willfully engaging in the legislative process (a less protected form of speech).
If it is ruled to be the latter, then the names and addresses of petition signers, in this state and elsewhere, must be made available to the general public upon request.
The case grew out of last year’s Referendum 71, which attempted to reverse new same-sex domestic partnership rights that had been approved by the state legislature. R-71 got on the ballot but was defeated at the polls. However, during the campaigns for and against the measure, a controversy arose when gay rights activists submitted a records request demadning the petition sheets used to place R-71 on the ballot.
The group behind R-71, Protect Marriage Washington, successfully protested the release of the sheets in the U.S. District Court of Western Washington, arguing that the petition signers would be subject to harassment and “reprisals” if their names were made public. (Previous evidence
from similar situations in other states suggests that such fears are usually groundless.)
McKenna appealed the District Court’s ruling to the Ninth Circuit Court of Appeals, the mammoth left-leaning appellate court with jurisdiction over nine Western states, including Washington. The Ninth Circuit overturned the previous ruling, but Supreme Court Justice Anthony Kennedy swooped in to stop the release of the names, and then an eight-to-one vote of the Supreme Court led to its formal consideration of the case.
Secretary of State Sam Reed and McKenna (who has won two previous cases before the Supreme Court) flew to Washington D.C. last week to make their final preparations for arguing before the highest court in the land, and just prior to leaving they outlined their basic legal strategy to reporters.
They plan to argue that the petition signers are “acting in a legislative capacity,” in McKenna’s words, when they put their names and addresses to a document intended to enact a new law, and therefore under Washington State law their signatures should be freely available. The two men also point out—as have others—that this case could have wide-ranging implications: “It will affect not only all Washington State referenda and initiatives, but have ramifications for every state with a referendum or initiative process,” McKenna told reporters last week.
Their supporters also fear that the original District Court ruling against Washington State is so broad that it could be interpreted as allowing anonymous campaign contributions—not to mention the fact that catching fraudulent signatures, which frequently mar ballot petitions, would be made that much harder if names and addresses weren't public records. McKenna remains confident that the Supreme Court "will uphold the public interest of transparency”.
But the outcomes of free speech cases are notoriously hard to predict. More on that in a post later today, and more about the oral arguments—which I'll be attending, in the required coat and tie—tomorrow on Slog.