In 1972 Washington voters enshrined the principle of open government and accountability when they overwhelmingly passed Initiative 276. (In the halcyon days before initiative profiteers and paid signature gatherers.) The Public Records Act, like the Public Disclosure Act, is a touchstone of open government and citizen bird-dogging. It's a civic covenant that throws light on the public square, just as it triggers migraines for Washington's trying-to-stay-honest bureaucrats.
The public-access question was cast into relief last Tuesday when the 9th Circuit Court of Appeals rejected a challenge to the state's practice of releasing referendum and initiative petitions. The case centered on Referendum 71, the "everything but marriage" measure that Washington voters passed in 2009. R-71 made whole the Legislature's law on domestic partnerships for gays and lesbians as well as older heterosexual couples. Protect Marriage Washington, the petition organizers, aimed to keep the signers confidential, arguing that disclosing the documents abrogated "anonymous free-speech rights." For months, the R-71 litigation put the kibosh on releasing signatures as the case navigated the appeals process.
Washington Attorney General Rob McKenna, representing Secretary of State Sam Reed, managed an impressive 8-1 ruling in the U.S. Supreme Court in 2010, asserting that petitions are public documents which fall under the rubric of the Public Records Act. McKenna and Reed had common sense and the Public Records Act on their side. Initiatives and referenda are legislative tools. They are not secret ballots.
The Public Records Act question was rekindled after opponents filed what's known as an "as applied" challenge. As Appeals Judge A. Wallace Tashima noted in Tuesday's opinion, the challenge is moot because the documents were released some time ago.
"I am happy that disclosure of petitions has been without incident, and the initiative and referendum process is alive and well, with no apparently 'chilling' of the process we hold dear," Sam Reed said. "I am glad we are having a civil debate this year over same-sex marriage and other difficult issues. We can disagree agreeably."
Open government and the First Amendment are sacrosanct, but rights impose responsibilities. Leaders at Protect Marriage Washington feared that R-71 petition signers would be harassed by pro-partnership activists. That has occurred in a handful of cases, we know, including here in Snohomish County. Bullies haranguing petition signers they presuppose are anti-gay? It's not only counterproductive, but a strike on civic life.
While constitutional freedoms can't staunch the lesser angels, disclosure and public access have a tonic effect. Nothing is more true or consistent with Northwest values than open, transparent government.
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