July 1 Daily News editorial
Advocates of open government have cause to celebrate, for now. Washington's nearly 40-year-old public records law has easily passed what is perhaps its sternest constitutional test to date. The U.S. Supreme Court ruled last week that the names of those signing initiative and referendum petitions can be disclosed without infringing on the signers' freedom of speech.
Sponsors of the 2009 referendum campaign aimed at repealing this state's expanded domestic partnership law brought the case, arguing that public disclosure would subject petitioners to a degree of intimidation sufficient to violate their First Amendment rights. Eight of nine justices — Justice Clarence Thomas was the lone dissenter — rejected that argument.
But last week's opinion upholding the constitutionality of the state's Public Records Act will not be the final word in this case. Plaintiffs now will go back to the lower court to argue a narrower case. They will attempt to persuade the courts that, in this instance, the threat of harassment and intimidation for Referendum 71 petitioners is such that their names should not be disclosed. That argument does not threaten to overturn Washington's public records law. But it does threaten to carve out a damaging exception to the law — one that could eventually become the norm.
We're encouraged by last week's lopsided decision and some of the justices' comments to think this more focused legal strategy would have no more success than the broader challenge to the state's public records law.
According to Associated Press writer Jesse J. Holland, Justice Antonin Scalia voiced skepticism about that tact, noting that there already are laws against threats and intimidation. Scalia wrote that, "harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance." Scalia reportedly added that he did not look forward to a country that "exercises the direct democracy of initiative and referendum hidden from public scrutiny or protected from the accountability of criticism."
Justice Sonia Sotomayor wrote that, "Even when a referendum involves a particularly controversial subject and some petition signers fear harassment from non-state actors, a state's important interests in "protecting the integrity and reliability of the initiative process' remain undiminished."
We do not begin to condone the all-too-apparent motives of some activists who sought the release of R-71 petitioners' names last summer. Their clear intention was to intimidate signers and/or would-be signers. But the remedy referendum sponsors sought poses a far greater threat to the political process than behavior that prompted it. It's as Washington Attorney General Rob McKenna said in a press release hailing last week's decision. "Citizen legislating is too important to be conducted in secret."
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