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Few issues seem to transcend party politics these days, but efforts to protect open government and public records laws are solidly uniting interests across the political spectrum. Case in point is Doe v. Reed, a case stemming from the failed efforts of anti-gay religious conservatives in Washington to repeal a comprehensive domestic partnership law via Referendum 71.
What the Doe plaintiffs are asking for is a serious departure from open government. They will be arguing before the US Supreme Court on Wednesday that referendum petition signers have a First Amendment right to anonymously step into a legislator’s shoes and trigger legislative action. Signing a referendum petition is a legislative act because it demands that a duly-enacted law be put on hold and directs the Secretary of State to call an election. The Doe plaintiffs want the identity of citizen legislators to be immune from public disclosure.
The plaintiffs imply that they are the only stakeholder in the referendum process whose rights deserve consideration. In reality, there are two other stakeholders whose rights must be considered: voters whose rights may be taken away by the referendum; and voters concerned that government remains open, fair and accountable to the people.
Voters concerned with open government represent the entire conservative-progressive spectrum, as evidenced by the respondents in the Doe case. Defending Washington’s republican Secretary of State Sam Reed before the US Supreme Court is Attorney General Rob McKenna, a republican who ran on an open government platform in past elections and who chose to argue this case personally before the Court.
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Joining the case as respondent intervenors are Washington Families Standing Together (WAFST) and Washington Coalition for Open Government (WCOG). WAFST is the statewide coalition that led the campaign to retain Washington’s domestic partnership law, which voters approved by 53.2 %, making Washington the first state to affirm an LGBT relationship recognition law at the polls.
WAFST intervened in the lower court in order to protect their and the public’s right to ensure that only legal signatures from the Referendum 71 petitions were counted. WAFST is concerned that election processes be transparent, fair and free from fraud for all ballot measure and candidate elections. Public disclosure and election regulations help ensure that the public can know who is promoting a measure with their signatures or their money.
WCOG is supported by a wide array of individuals and organizations, from the progressive American Civil Liberties Union to the conservative Evergreen Freedom Foundation.
Joining Attorney General McKenna, WAFST and WCOG in the defense of open government via amicus brief are the attorneys general from each of the 23 other states allowing citizen initiatives and referenda. Like Mr. McKenna, the attorneys general representing Colorado, Florida, Idaho, North Dakota, South Carolina, South Dakota, Utah and Wisconsin are republicans. The other 15 attorneys general are democrats. In addition, non-partisan organizations whose members are state, county and municipal governments and officials have filed a brief in support of open government.
Running the gamut from liberal to conservative to impartial, dozens of publishing, news and information organizations have submitted amicus briefs in support of open government, including National and Washington State News Publishers, News Broadcasters and News Media Professional Associations (Advance Publications, The American Society of News Editors, P.L.C., Belo, Bloomberg, CNN, Cox Media Group, Dow Jones, Hearst, Magazine Publishers of America, Newsweek, New York Times Co., ProPublica, Tribune Co., The Washington Post Co.). Two other briefs (here and here) represent the open government interests of Reporters Committee for Freedom of the Press, Gannett, National Newspaper Association, Newspaper Association of America, The Radio-Television Digital News Association, Society Of Professional Journalists, American Business Media, Consumer Data Industry Association, First American Corelogic, the National Association of Professional Background Screeners, Reed Elsevier, the Software & Information Industry Association, Transunion and Thomson Reuters.
Not all conservatives are alike, and clearly open government is where most will part company with the radical-right type of social conservatives behind Doe v. Reed. Open government is fundamental to a healthy democracy. It should be no surprise that this issue is one which transcends politics and partisanship.
Cross-posted at Washblog.
5 Comments
I would add a fourth group of stakeholdersPeople whose name, voting address and signature are already matters of public record, who want to guarantee that their information and signature were not used fraudulently to pad the number of signatures turned in.
This is a big issue for me. I have signed past petitions, and I have run political campaigns and initiative drives. This all means that my name, voting address and signatures are matters of public record, both through the office of the Secretary of State and through the Public Disclosure Commission. It would be very, very easy for someone to copy information from extant public records and commit massive fraud, and I demand my right as a concerned citizen to make sure that I am not implicated in any fraud.
(Personally, I am convinced that this is why the R-71 promoters are so desperate to keep the petitions sealed. Every pundit was predicting, up until the day the signatures were turned in, that the referendum sponsors would fail and fail big. Somehow, somewhere, they managed to pull more than 200,000 signatures out of thin air. That has struck a lot of people as quite suspicious.)
they only turned in about 138,000,not 200,000. of the 138,000 the sec’y state determined that only 121,777 were valid, a mere 1,200 over the minimum needed.
you bring an interesting perspective on this. the court can’t put the info genie back in the bottle. as you say, your info and the info of about a million other referendum and initiative signers nationwide (including mine) has already been released. if we can’t check the petition sheets that get turned in, we’ll never know whether our names were fraudulently placed on a petition. and petition fraud happens A LOT. check out WAFST’s brief for a nice starter list.
It’s a spin on the “citizen-legislator” angle, and a good one.You’re insisting (and I’ll definitely join you on this) that it’s a violation of your rights to have your voice as a citizen-legislator, to whatever extent that role exists, taken from you and used by someone else. As long as petition-signer info is kept secret, none of us have a reliable means of knowing whether our individual voices have been fraudulently appropriated.
I think it will be a 5-4 decision, but which way I don’t know…SCOTUS recently held that corporations have the same First Amendment rights as individuals to make unlimited campaign contributions. Scalia, Alito, Roberts, and Thomas predictably sided with big business interests. Ginsberg, Souter, Breyer and Stevens voted to uphold the limitations on contributions. Kennedy was the swing vote, and he sided with the conservatives. That case will be used as precedent for the Doe v. Reed case.
The big challenge in this case is to distinguish the right to participate in the political process from the right to do so anonymously. An important right can be regulated if a compelling government interest is served by the regulation. Here, the compelling government interest is to prevent fraud and corruption. That interest can be dealt with by requiring people to speak/contribute openly, without regulating what they say or how much they contribute. People cannot be prohibited from participating in the process, but participation can be subject to content-neutral regulation as to time, place and manner. That is the argument that must be made clear to Justice Anthony Kennedy. He is the thin thread by which open government in our country hangs.
You’re right, I misremembered the numberReferenda require only 4% of the total number of votes cast in the previous governor’s race; initiatives require 8%.
My point was, though, that there was every indication that the referendum drive would fail, and fail big. Outside of a few very conservative churches, no one saw any petititons circulating. Then there was the fact that an awful lot of the petitions had the mandatory disclaimer signed by rubber stamp at the HQ and not by the person who circulated the petitions. I never understood why that didn’t immediately invalidate the petitions entirely.