SCOTUS upholds Washington’s Public Records Act

Not surprisingly, the Supreme Court of the United States upheld Washington’s Public Records Act today, rejecting Referendum 71 backers’ claims that revealing the names of those who signed the petition would violate their First Amendment right to free speech. The court ruled 8-1, with only Justice Clarence Thomas dissenting.

R-71 would have repealed WA’s recently passed domestic partnership law. During the signature gathering phase, some gay rights activists had threatened to publish the names of people who signed the petition.

I say the decision is not surprising because state and federal courts have already recognized that there are limited circumstances in which petitions and campaign finance records can be withheld from public disclosure to protect the rights of the participants, so there was no need for such a sweeping ruling. Indeed, the SCOTUS referred the case back down to the lower courts to determine whether R-71’s signers can be revealed under its particular circumstances.

You can read the whole opinion here.

UPDATE:
As mentioned in the comment thread, SCOTUSblog has a good synopsis of the ruling, so I don’t really feel the need to go into any additional detail, except to thumb my nose at Tim Eyman.

Comments

  1. 2

    spews:

    Did Thomas articulate any rationale for his dissent?

    Heh! Putting “Thomas” and “articulate” in the same sentence … you’re such a kidder, sarge.

  2. 4

    Alki Postings spews:

    Did Thomas ask any questions during the case?
    Trick question! Thomas doesn’t talk! He has a secret telepathic ability to read the minds of the lawyers and gain all the information he needs that way. He’s a mutant!

    The whole case is so cute. The cowards are trying to hide. They don’t want their names revealed, they didn’t open their “campaign” to the public or press the night of the election…unlike the anti-R71 folks who hosted the press and streamed their election night HQ on the web. If you have to skulk around in secret and lie to do stuff like pass R71, then you may well be on the wrong side of history.

    I also love that the straight people are afraid of the evil ol’ gays. Yes, throughout the last 50 years, that’s been the problem, straight people being harassed and attacked by gays. Oh wait, the right wing is always nuts and have “beliefs” that are 100% the opposite of reality. A gay man is 100 times more likely to be harassed or attacked by a straight person than the other way around. Not saying there’s NEVER been a mob of gays attacking straights at a bar, but 100 times less likely. :)

  3. 5

    MikeBoyScout spews:

    And Sarge…. as N in Seattle guessed, it pretty much is a sucky sophomoric hash.

    One snippet

    In addition, as I have previously explained, the state of technology today creates at least some probability that signers of every referendum will be subjected to threats, harassment, or reprisals if their personal information is disclosed. “‘[T]he advent of the Internet’ enables” rapid dissemination of “‘the information needed’ to” threaten or harass every referendum signer.

    He quotes himself, a leading expert on internet technology. :-D

  4. 6

    Zotz spews:

    All I want to know when I get a crack at who signed is what business I will never spend my money at again — and making sure that a lot of other people know as well.

    And of course I look forward to pointing and laughing at some folks too.

  5. 7

    Alki Postings spews:

    @6 Exactly. I will not HARASS or threaten anyone. But I DO have the right to choose (libertarian like) where I spend my money, at what private business. A business is FREE to put up a sign saying they support the KKK, and I’m free to not shop there.

  6. 8

    rhp6033 spews:

    Mike beat me to it. I got too caught up in trying to read Thomas’ dissenting opinion to post it before he did.

    From a quick skim of Thomas’ opinion, it appears that Thomas is equating signing of a petition or initiative to belonging to a political association. The US Supreme Court has previoiusly held that membership records of private political associations are protected under the First Amendment.

    Although the legislature can still regulate within protected First Amendment areas, such regulation has to be strictly related to a compelling public interest and limited in scope only to the extent necessary to achieve that public interest. This is the “strict scrutiny” test, to which Thomas’ aludes, and where he claims the Washington laws fall short.

    The fatal error in his reasoning is equating signing a public initiative with private membership records of a political association. They are two different things altogether, a fact which he ignores. He also rather carelessly dismisses the state’s recitation of “a mere eight instances of singature fraud” as proof that this is an insufficient problem to justify transparancy in the initiative process.

    You might also want to read Stevens’ concurring opinion, where he relates that there was no history of a secret ballot in the U.S. until the 1880’s, when many states adopted the “Australian Ballot”.

  7. 9

    spews:

    I’m shocked to find myself nodding in agreement with Justice Scalia’s concurring opinion. He most fully recognizes that Washington’s (any state’s, actually) R&I process is essentially legislating. Which is, and always has been in the United States, a public process. Justice Sotomayor’s concurrence also mentions this, but less strongly and less specifically.

    I might have pointed out that a proposed referendum or initiative must specify where and how it will alter the provisions of the RCW. That, in and of itself, demonstrates that we’re talking about legislative actions.

  8. 10

    Uh oh, Chongo! spews:

    @7

    If I remember correctly, the purpose of making the names public was so that the supporters of gay marriage could contact the signers to “persuade” them into changing their vote.

    I think the guy who was pushing release of the information forward pretty much said this was his intent…which inevitably would lead to harassment or worse.

    For the record, I could care less if gays get married, however I am adamantly against the release of the signature information. People should be free to vote or sign petitions with anonymity and the knowledge that they wont be harassed for intimidated into voting a certain way.

    Last I heard, the pot smokers were not all keen on having their signatures outed either(for the legalization initiative).

  9. 11

    ivan spews:

    @ 10:

    I thought you right-wingers were all into “personal responsibility.” I guess I was wrong about that. The fact is, you’re all too chickenshit to stand up and be counted.

    Get it straight, bucko. There is no right NOT to be harassed. Once you are harassed, there are anti-harassment laws to deal with it.

    Besides that, are you afraid of those scary gays harassing you? I thought so.

  10. 12

    spews:

    Uh oh, Troll-o @10:

    If I remember correctly, the purpose of making the names public was so that the supporters of gay marriage could contact the signers to “persuade” them into changing their vote.

    As usual, you remember incorrectly.

    The purpose of making the names public is because legislation is always done in public. I&R is a means for the citizenry to act legislatively, writing provisions to be placed in the RCW and removing or replacing existing RCW language.

  11. 14

    Uh oh, Chongo! spews:

    @12

    ummm, N in seattle, I think it is you who remembers incorrectly.

    Brian Murphy(the guy behind releasing the signatures) was quoted more than once saying that his intent was to have people “contact” the signers….

    nice try though…spin spin spin away….

  12. 15

    MikeBoyScout spews:

    @10 Chongo on 06/24/2010 at 10:12 am

    I am adamantly against the release of the signature information.

    Uh Oh! 8 to 1.

  13. 16

    Uh oh, Chongo! spews:

    @15

    and?

    not to worry mike and ivan, you two can still go play bust-a-nut-in-johnny’s-butt all you want.

    its a free country, and you are free to be as sick and mentally twisted and confused as you want to be. its all good.

  14. 17

    spews:

    playing stupid, Uh oh Troll-o:

    Brian Murphy(the guy behind releasing the signatures) was quoted more than once saying that his intent was to have people “contact” the signers….

    Irrelevant. This is a court case about constitutional issues. SCOTUS decides cases on that basis, not silly statements by PR flacks.

    Disappointingly, most commentary here (and nationally, for that matter) concentrates on the particulars of “gay v. intolerant” instead of the real meaning of the decision. I refer not only to the commenters (and here, I’ll include both you and my friend ivan), but to the “pundits” like Josh Feit over at Publicola. Kudos to Goldy, for writing about the actual content and implications of Doe v. Reed.

    Sure, the case originates in R-71, but the Court didn’t care one iota about which particular referendum was the origin of the case.

  15. 18

    Alki Postings spews:

    @14 Crazy and backwards reality of dumb Republicans. Black is white, up is down, evolution isn’t true, magic is real. Just crazy people. Maybe the gay mafia will attack these folks, or they’ll use the “gay agenda” we set at our weekly meetings. ROTFLMAO. Grow up. You’re afraid of ONE guy bothering people? Dude that can happen if you put up a sign in your front yard showing your support for an issue or candidate, or if you put a bumper sticker on your car. You have NO right of privacy when trying to enact legislation. Your VOTE is private, your attempt to create legislation is not. The issue has been settled. Deal with it.

    @19 That’s a good point. They did just punt it back to the state (which had already decided…which is why they tried to take it to the Federal level to change it).

  16. 19

    rhp6033 spews:

    One thing keeps getting lost in the discussion. The Supreme Court said the state has a right to require the disclosure of the names. The Court DID NOT say that there was a Constitutional right to access to the names. In short, it is left up to the state legislature whether or not they want the information released or not.

    Which raises the possibility of yet ANOTHER initiative, to keep the names private.

  17. 20

    Alki Postings spews:

    @19 Also good point that issues like this (or abortion) bring up far more emotion than factual debate…which is why they often seem intractable. Emotions can’t be “debated” but facts can. The facts are settled in this case. The state has the right to decide if initiative names are public or not, and they’ve said public. If someone wants to change this state law, feel free, that’s also you’re right. But things like this are a double edged sword. Wait until something comes along you DON’T like then all of the sudden you’ll WANT the name. Just like a bunch of right wingers did when some gay supportive groups used “public facilities”, they wanted to names (as way of intimidation as you say) of who was there. But now they DON’T want the names released of THEIR friends and allies because they’re afraid of…intimidation. Funny how that works.

    “Be careful for what you ask, you might get it.”

  18. 21

    spews:

    LMAO! Chongo chickenshit is 8WNED again..

    Besides that, are you afraid of those scary gays harassing you? I thought so.

    Yep, scared to death. And brags about packing heat to boot.

  19. 22

    Uh oh, Chongo! spews:

    @21

    LMFAO….scared – hardly.

    The issue(as N from Seattle correctly put it) has nothing to do with gay vs straight…it has to do with privacy.

    and YLB, I dont think anybody is scared of a little out of work bitch like yourself.

    @19….I would support that initiative. Of course the state would have access to the names, because they need to check for the authenticity of the signatures. But beyond that, I dont feel that it is my or anybody’s business how my neighbor votes or what he signs up for.

  20. 23

    Uh oh, Chongo! spews:

    @20

    you said:
    But things like this are a double edged sword

    Very true. Just look at all the pot smokers who dont want their names to become public on the legalize mary jane issue.

    double edge sword indeed….people should be careful what they wish for.

  21. 24

    Daddy Love spews:

    I’m going to thumb my nose at Tim Eyman, too, only it’s not my thumb, and it’s not my nose.

  22. 25

    Uh oh, Chongo! spews:

    Do we really want someone, like a YLB(with nothing better do, like work), sitting back and making a database of the state’s population and tracking what initiatives people sign up for?

    Is that what democracy needs? I think not.

    I think this is potentially no less damaging to freedom and democracy as the citizens united decision is.

  23. 26

    Daddy Love spews:

    10. Uh oh, Chongo!

    If I remember correctly, the purpose of making the names public was so that the supporters of gay marriage could contact the signers to “persuade” them into changing their vote.

    I think the guy who was pushing release of the information forward pretty much said this was his intent…

    So you “think” that the guy “pretty much said” that, do you? That is actually the opposite of remembering correctly. If you have a quotation you can cite, do so. Otherwise we can safely assume that it’s just the spin that Republicans put on their little anti-gay witch hunt.

    Also, N @12 was correct to say that I&R signers were already public. It was the attempt to place those public records on the web that scared the R-71 backers out of their pretty pink undershorts, and (if I remember correctly :) ) they obtained an injunction that stopped the state from publishing them as well (until this ruling).

    So was Brian Murphy the guy who was going to put the records on the web, or the guy who sued to make them public again, or both? How’s your memory?

  24. 27

    Uh oh, Chongo! spews:

    @26

    Brian Murphy was the guy behind whosigned.org.

    go look it up numbnuts.

    Hows your mammary?

  25. 28

    Daddy Love spews:

    25. Uh oh, Chongo!

    Do we really want someone, like a YLB(with nothing better do, like work), sitting back and making a database of the state’s population and tracking what initiatives people sign up for?

    If ignorance is bliss, you must be a happy person. I&R signer names have always been public. And making them so is laughably easy. You see, I&R sponsors turn in big sheets full of names to the state, who then throws out the bad ones, and makes the ones that are left public (as state law requires).

  26. 29

    Uh oh, Chongo! spews:

    the court made their decision – so be it – and the subject is out there for everyone to see

    the only question now is how long will it be before the partisan freaks on the left and right start abusing it…my guess is that it wont be long.

    as someone else said above, I think its only a matter of time before we get an initiate to keep the names private.

  27. 30

    Daddy Love spews:

    27. Uh oh, Chongo!

    Why should I look up anything? You’re the one claiming that he said stuff that he may or may not have said. But no quotes, huh? That’s too bad. Or sloppy. Or lazy.

  28. 31

    Uh oh, Chongo! spews:

    @30

    your a big Microsoft guy(LMFAO), use Bing and look it up.

    Its easy: go to Bing, type in R-71 and Brian Murphy, then hit enter.

    I’m gonna take the boat out and pull the kids around the lake…

  29. 32

    Daddy Love spews:

    The publicly avowed reason to put the names on the Internet (I got this directly off of whosigned.org) is:


    •Flag the 3% signature sample that is certified by the Elections Division of the Secretary of State.

    Provide Washington State Voters with a way to check that the public record of their advocacy is correct.

    Provide Washington State Voters with a way of reporting when their signature has been recorded either fraudulently or in error.

    Seems pretty reasonable to me. We all want to head off election fraud, don’t we? If someone thinks there is a different reason, they are obligated to prove it or else be considered just another ridiculous natterer.

  30. 34

    Michael spews:

    Chongo!

    Names are made public so that they can be double checked to see the signers are registered voters and know their names are being used. That way the folks at Acorn can’t cheat.

  31. 35

    rhp6033 spews:

    Chongo @ 28 said:

    “@19….I would support that initiative. Of course the state would have access to the names, because they need to check for the authenticity of the signatures. But beyond that, I dont feel that it is my or anybody’s business how my neighbor votes or what he signs up for.”

    I would oppose such an initiative. A petition is, by it’s very nature, a public proclamation of support or opposition for a specific governmental law or action. It’s history goes back centuries in Norman and Anglo-Saxon law, perhaps in other societies as well. Keeping the names secret makes a mockery of the history and original intent of such a practice. If someone wants to engage in the legislative process by signing an initiative or referendum, then they should stand up so as to be counted.

    Besides, based upon my experiences with signature-gatherers for Iyman’s initiatives, I suspect that there are a lot more cases of signature fraud than are being reported. When people are paid according to the number of signatures they collect, there is motivation to engage in illegal conduct. For example, a signature-gatherer can take a voter’s signature off one petition, and then enter it onto several other petitions (he already has all the necessary information and a sample of the voter’s signature). The only way to avoid such fraud is if voters can look up the record online. I believe quite a few voters would be quite shocked to see the initiatives to which their names are attached.

    Of course, that’s why Eyman is so opposed to the public having access to that information. That, and the fact that Eyman uses the information himself collected from his initiatives to compile an address list for fundraising and campaign purposes, from which he presumably profits. This is primarily a business venture for him, and public disclosure of the names tends to devalue his business.

    Now as for the actual vote on the initiatives, I’m a strong believer in the secret ballot. That way a voter can’t be coerced into voting to enact an initiative by friends, families, employers, unions, churches, etc. They can smile and tell them they will support them all the way, if they feel compelled to do so, but they can actually vote their own conscience.

  32. 36

    spews:

    scared – hardly.

    Ok. Prove it. Show up at a DL and hand your grand to Goldy to hold while he calls GBS to take delivery. Yes – that very same night.

    Just like you said you would.

    28. Dr. Dre spews:
    @24..I got a grand that says your too chickenshit to show up at the next HA…..

    http://horsesass.org/?p=27367#comment-1002354

    If GBS doesn’t show, you would be right about him? Goldy will hand you back your grand. He’s an honorable guy. Besides since you’ll be carrying your pop gun, Goldy will have no choice right?

    But you won’t do that will you?

    Chongo Chickenshit.

  33. 38

    spews:

    But no quotes, huh? That’s too bad. Or sloppy. Or lazy.

    Or evidence of a stupid, frightened caricature of a man.

  34. 39

    uptown spews:

    10 years ago people would just leave their initiative petitions on easels around many neighborhoods in Seattle, so folks could sign them at their leisure. The names of those who had signed that day were visible to anybody who cared to look.

  35. 40

    spews:

    uptown @39:

    10 years ago people would just leave their initiative petitions on easels around many neighborhoods in Seattle, so folks could sign them at their leisure. The names of those who had signed that day were visible to anybody who cared to look.

    In New Hampshire, up-to-date voter registration lists are posted prominently in City Hall. With the voter’s party registration displayed.

    Unlike wimpy Washington, where people are more forthcoming about their sexual orientation — hell, their HIV status — than their political party.

  36. 41

    Zotz spews:

    Uh oh Choadblister! pwned by Daddy and YLB.

    Another closeted conservative compensating like crazy!

  37. 42

    Michael spews:

    @39

    10 years ago people would just leave their initiative petitions on easels around many neighborhoods in Seattle, so folks could sign them at their leisure.

    But, but, but, if we tried that today the liberals and the gays and the baby killers and the atheists would get together with ACORN and the next thing you’d know we’d have a muslim, communist, from Kenya elected President, against the will of Real Americans that live in Real America!

  38. 46

    Chris spews:

    I support gay rights and never would have signed this petition, but this sets up a very dangerous precedent and allows for the harassment of people for there political views. Today conservative petition signers are being put up for harassment, but tomorrow it could be the people on the left. Why do these names need to be revealed. What good does this serve. People should have the right to be able to sign whatever they please without fear of reprisals. Why not just get rid of the secret ballot all together, since were halfway there now with this ruling. Whatever happened to “I disagree with what you say, but I’ll fight to the death for your right to say it.”

    @ 32: This can be done through some kind of encrypted secure, (https) server , it doesnt need to be public

  39. 47

    Zotz spews:

    @46: You’re an idiot. One more time…

    The whole point of an initiative or referendum is to supplement the legislative process. Signing an initiative is legislating and is thus a publically accountable act.

    Whether or not to approve an initiative or referendum; i.e., voting, is a private act using a secret ballot and handling procedures to ensure secrecy is maintained.

    Make a note of it.

  40. 48

    Proud To Be An Ass spews:

    “Are you or have you ever been a member of an organization that advocates the overthrow of the United States government by force or other violent means?”

    I remember the days when that question was asked regularly. I recall people being blackballed and losing their livelihood because they merely signed petitions deemed “subversive”.

    So all I have to say to chongo and his ilk is, “Go fuck yourself”.

  41. 49

    Michael spews:

    @46

    I do believe, the SCOTUS case upholds a Washington State law that has been on the books for quite a while.

  42. 50

    Chris spews:

    @47 How is voting on an initiative not a form of legislation. Isn’t voting on laws part of what a LEGISLATURE does?