|OLYMPIA—In an 8-1 decision today, the US Supreme Court upheld the constitutionality of Washington’s voter-approved public records law, retaining the public’s ability to obtain copies of petitions signed in favor of placing initiatives and referenda on the ballot. Attorney General Rob McKenna personally argued the case on behalf of the state.
In his April 28 argument, McKenna asked the court to uphold a Ninth Circuit ruling, supporting the constitutionality of the state's public disclosure law and specifically allowing the release of the names and addresses of petitioners who signed Referendum 71.
R-71 placed the state's expanded domestic partnership law on the November 2009 ballot. Lower courts blocked the release of the signatures, ruling that the state's disclosure law violated petitioners' rights to anonymous political speech.
“This is a good day for transparency and accountability in elections—not just in Washington but across our country,” McKenna said. “We’re pleased the Supreme Court ruled in favor of disclosure, upholding the public’s right to double-check the work of signature gatherers and government – and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret.”
“Even as we welcome today’s ruling, I understand privacy concerns in the Internet era and the desire to participate in our initiative and referendum process without fear of harassment or retaliation,” said Secretary of State Sam Reed. “I will continue to speak out for civility in our citizenship and will firmly insist that petition signatures not be used in a threatening or inappropriate way. We have a long history of debating and voting on some very difficult and personal issues in a civil way, and I believe we will continue to do so. We do not want to ever chill voters’ right to take part in what we value as `direct democracy.”
Doe v. Reed was McKenna’s third argument before the US Supreme Court and his third victory.
Despite the Supreme Court’s ruling, copies of the petitions will not be immediately available for several reasons.
First, the Supreme Court’s reinstatement of the district court’s injunction preventing disclosure of the petitions will remain in effect until the Court sends down its judgment. The plaintiffs will have 25 days to file a motion for rehearing at which time, if no motion has been filed, the court will send down its judgment and the district court’s injunction preventing release will be dissolved.
Second, the court’s ruling today addressed the broader claim brought forward on behalf of those who signed Ref. 71 that the state’s public records act is unconstitutional as applied to all petitions for referenda. The more narrow question of whether release of the Ref. 71 petitions is unconstitutional because of possible threats or harassment was not before the court and remains to be heard in lower court.
Finally, Judge Richard Hicks in Thurston County Superior Court must also lift the injunction he issued in a separate case before him which banned the release of all initiative and referendum petitions —including Ref. 71 petitions-- pending the outcome of this case.
A backgrounder on the case is available on the Attorney General’s Web site. It includes:
• Embedded video of the April 19 media availability with McKenna and Reed;
• Embedded video of the April 28 post-argument media availability on the steps of the US Supreme Court; and
• A link to the official transcript of the oral argument.
Briefs and other legal documents are available on the Secretary of State’s Web site.
The opinion is posted on the US Supreme Court Web site.
• Janelle Guthrie, Attorney General’s Office Communications Director, (360) 586-0725
• David Ammons, Secretary of State’s Office Communications Director, (360) 902-4140