At 10 a.m. Wednesday, Washington state Attorney General Rob McKenna will stand before the nine justices of the United States Supreme Court and launch a spirited defense of this state's Public Records Act.
The stakes are huge. In jeopardy are accountability and transparency in government operations, the public’s right to know and whether citizens can access voting records to determine whether fraud has been committed. He will argue that the names of people who signed Referendum 71 are a matter of public record and should be disclosed.
On the other side, lawyers representing Protect Marriage Washington, an organization that unsuccessfully opposed a new law giving gay couples expanded rights, will argue that the names of petition signers should be kept secret.
The core question before the Supreme Court is whether this state’s open records law violates the free speech rights of those voters who signed Referendum 71 petitions by requiring their names to be made public. Those who want to keep the names secret say they fear harassment and intimidation for signing the anti-gay rights ballot measure.
McKenna’s legal team won at the federal appeals court level. Let’s hope the attorney general is equally successful before the nation’s highest court.
“This case has broad implications for public disclosure and transparency in elections across America,” McKenna said. “Of the 24 states who have both an initiative and referendum process, 23 release information about the petitioners under their public records laws. We look forward to the opportunity to defend transparency in the elections process — not just for the people of our state, but for people in all states that offer the right to directly participate in lawmaking through the initiative and referendum process.”
McKenna himself will argue the state’s case before the court — a demonstration of its importance and national ramifications. Before he left Olympia on Tuesday, McKenna and his team participated in two moot courts — in essence practice sessions. The attorney general has been in seclusion in Washington, D.C., since then and participated in two more moot court sessions.
The idea behind the moot courts, McKenna said, is to try to anticipate every single question Supreme Court justices might ask and prepare answers accordingly.
“I have to answer all the questions. They get to ask them one at a time,” McKenna said in a press conference before his departure.
Secretary of State Sam Reed, who will be at McKenna’s side Wednesday, said he’s watched the attorney general on the national stage before. “These are not nice, gentle questions,” Reed said. Justices ask provocative and challenging questions that are often accusatory in tone. Thank God, Reed said, the attorney general is quick on his feet.
McKenna said signing initiative and referendum petitions is a way citizens participate in the legislative process. He said that those names become public records when the sponsor submits petition sheets to the Secretary of State for verification. “We don’t legislate in secret in this state,” McKenna said.
“This is a legislative act, not core political speech.”
Reed echoed that thought, which will be a central argument of the state’s case Wednesday. “We firmly believe that participating in the initiative and referendum process is a public act of citizen legislating, with disclosure of petitions required under the framework of our Public Records Act,” Reed said. “We also believe we can provide transparency and accountability in elections without violating voters’ constitutional rights, as the 9th Circuit Court of Appeals correctly decided.
“When people sign petitions in malls, at county fairs and in other public settings, and those petitions are viewed by other signers, petition-gatherers and campaign staff, it’s clear this process does not carry the expectation of the privacy we have with voting.”
McKenna is clearly pleased that he has so much support for openness and transparency from other states and news organizations, including The New York Times Co. The attorney general notes that members of the public in other states have used the names on petitions to disclose mistakes and “outright fraud” in the signature collection process.
Putting those petition names off limits to public inspection and the courts also could shield the names of people who sign candidate nominating petitions or recall petitions against government officers.
While opponents will likely focus on fear — fear of what might happen to petition signers — McKenna appears to have the facts and the law on his side. The fact that the state won at the appellate court level is significant, too.
Let’s hope McKenna is able to convince a majority of the Supreme Court justices that Washington state has a long history of making records available to the public, and that existing criminal laws protect initiative and referendum signers from harassment and intimidation.