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September 01, 2009

I’m sending this special edition of the McKenna Must Read because I’m receiving many questions from citizens about the issue of whether or not names on referendum petitions are public. I thought you might find it useful to hear directly from me on this issue.

The Washington State Constitution directs the Attorney General to defend state laws and serve as legal counsel to state agencies. One of our duties is to defend the initiative and referendum processes. In this role, the Attorney General’s Office has been defending the Secretary of State against ongoing efforts to block Referendum 71 from appearing on the ballot.

(Referendum 71 calls for a public vote on a new Washington law expanding domestic partnership benefits for same sex couples, as well as heterosexual couples that include one person age sixty-two or older.)

To date, we have won all of those cases, ensuring voters will have their say in deciding whether to approve or reject the new law.

Under our state Constitution, the referendum and initiative processes empower Washington voters to substitute themselves for the Legislature. They may send voter-authored proposed laws to the Legislature by an initiative; directly legislate by qualifying law-making initiatives to the people; and, as voters have done with Referendum 71, they may subject legislatively adopted laws to a public vote through the referendum process.

At issue now is whether it is unconstitutional to require the names on the Referendum 71 petition to be made public. As you know, Washington state law emphasizes openness and transparency in government, meaning that all documents are public unless specifically exempted by the Legislature. In this case, there is no exemption in the Public Records Act preventing the release of the names of the people who signed this petition.

Petitions are not secret ballots, like those we cast when voting in an election. The fact that petition signers put their names, addresses and signatures on the same petition sheet as dozens of other voters clearly distinguishes them from the individual ballots that we fill out, seal in a security envelope, and then deliver in another, outer envelope. Petitions, in contrast, are distributed by volunteers or paid signature gatherers who then submit them to the referendum or initiative sponsor where they are collected and forwarded to the Secretary of State. Petitions routinely are copied by the sponsors, who keep those copies and often create and share databases containing the names and addresses of the signers. Nothing in that process is intended to create an expectation of confidentiality for the petition signer.

Nonetheless, earlier this month, a federal judge in Tacoma granted the Referendum 71 sponsors' request to keep their signed petitions out of public view.

We believe the federal judge in this case misapplied constitutional law in holding that the names on the petitions are “anonymous political speech.” That concept was developed to protect, for instance, NAACP members from the violence in the South in the 1950’s, when they were allowed to keep their membership roles secret. We do not believe that category of protected speech applies in this case.

The federal judge made no specific findings regarding harassment, intimidation or violence toward anyone who signed Referendum 71. Instead, he ruled categorically that names on a petition for a referendum should be anonymous and not disclosed. The effect of his ruling is that potentially anyone who signs any petition for any initiative or referendum would be anonymous. Because we believe such a far-reaching ruling should not be allowed to stand, we appealed his decision.

The 9th U.S. Circuit Court of Appeals has granted our request for a fast-track appeal. A hearing is scheduled for Oct. 14 in Pasadena, California, where our Solicitor General Team will continue our vigorous defense of the people’s right to decide on this matter by arguing to overturn the District Court’s Preliminary Injunction blocking the release of the petitions for Referendum 71.
We share the concerns about the harassment and confrontation threatened by some opponents of Referendum 71. While the Attorney General’s Office does not have original criminal jurisdiction, should a signer suffer unlawful harassment or intimidation, we would urge them to immediately contact local law enforcement. The Attorney General’s Office is prepared to offer assistance to any local jurisdiction that refers to us such a case. 

Updates on our efforts can be found on our website. Meanwhile, I hope you find this information useful.

Rob McKenna
Attorney General

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