High court ruling upholds public records law

The state of Washington won its case in the U.S. Supreme Court – and so did Idaho – when the high court recently upheld Washington’s Public Records Act and its requirement that signatures on a referendum petition be public, not secret. Idaho has similar laws, and joined 22 other states in filing a “friend of the court” brief backing Washington’s position.

The group “Protect Marriage Washington” sued to prevent the release of the names of those who signed Referendum 71, the state’s unsuccessful measure that sought to overturn a same-sex domestic partnership law, arguing that the Washington public records law was unconstitutional because making the signers’ names public could subject them to harassment for exercising their right to free speech.

In an 8-1 opinion authored by Chief Justice John Roberts, the high court found that openness is vitally important to help states make sure signatures on referendum or initiative petitions are valid.

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” Roberts wrote. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

Justice Clarence Thomas was the only dissenter; the case is Doe vs. Reed.

When the high court heard the case, the justices’ questioning showed much concern about openness and transparency. Justice Antonin Scalia told attorney James Bopp Jr., who was arguing for keeping the names secret, “The fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process. You are asking us to enter into a whole new field where we have never gone before.”

The rights of initiative and referendum were placed in Idaho’s state constitution in 1912, in the same section that says the state House and Senate can pass laws.

“Our initiative and referendum statute is very similar to Washington’s and Oregon’s,” said Idaho Secretary of State Ben Ysursa, at whose request Idaho joined the case.

“I can’t think of something any more public, that should be public, than somebody signing an initiative petition that is basically using the legislative power reserved to the people,” Ysursa said. “It’s part of an open and transparent process, just like (legislators) voting on a piece of legislation would be. That was our basic reason to join in, and the other states that have initiative and referendum seem to agree with us.”

The 23 states, which also include Oregon, Utah, Arizona and Colorado and were led by Ohio, were among a long list of parties who filed supporting briefs on one side or the other in the case, from the American Conservative Union to the Reporters Committee for Freedom of the Press to the National Conference of State Legislatures.

Washington Secretary of State Sam Reed said, “This is a big victory for the people of Washington state and the cause of government transparency and accountability here and in other states. I am delighted.”