OLYMPIA — In eight days, Attorney General Rob McKenna will be defending the legality of the state’s public records law to the U.S. Supreme Court.
On Monday, he laid out arguments he’ll make on why the law’s requirement for revealing names of people who sign initiative and referendum petitions does not violate their constitutional right to privacy.
“We believe the court will rule that signing petitions is in fact a legislative act and that they will uphold the modest burden on signers,” he said.
Justices on April 28 will hear an hour of argument on whether signing a petition is protected political speech and if disclosing signers’ names under Washington’s Public Records Act crosses the line of the U.S. Constitution.
A ruling is due by the end of June.
This case arose from the 2009 battle on Referendum 71 in which voters upheld a controversial state law granting registered domestic partnerships the same rights and benefits as married couples.
Protect Marriage Washington, a coalition of social and religious conservative groups, led by Larry Stickney of Arlington, gathered 138,000 signatures to put the measure on the ballot. Though they lost their electoral fight, they’ve thus far been winning the fight to keep those names secret.
James Bopp of Indiana, the group’s nationally renowned attorney, will argue the First Amendment’s protection of political speech trumps the state’s rules for disclosure. In court filings, he contends that a person signing a petition is expressing “core political speech” which the constitution allows to be done anonymously.
Moreover, he will argue the law deters people from signing — and thus exercising their right to political participation — because they fear harassment from political opponents once their identities are known.
McKenna said he will counter by arguing that those who sign petitions do so in public places. By signing, they are acting as citizen legislators, and legislating cannot be done in secret, he said.
McKenna also there is a “compelling” interest in disclosure because it allows the public a chance to keep an eye out for error and fraud in elections as well as misbehavior throughout government, he said.
This is a case with wide ramifications. Similar disclosure laws exist in 23 other states and many of those states filed legal briefs in support of Washington.
Activists across the political spectrum are watching closely, too.
A decision in favor of Protect Marriage Washington could enable them to operate under a greater cloak of secrecy in pushing for new laws or repealing existing ones.
“We view this as a very significant case,” said Secretary of State Sam Reed, who will attend the hearing. “We have a long history going back to territorial days of the citizenry feeling very strongly that this is our government, we have a right to know what is going on with it.”
Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com.
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