Secretary of State Could Keep Petition Signatures Secret – if He Wanted To

Secretary of State Sam Reed

By Erik Smith

Staff writer/ Your Healthcare Today

OLYMPIA, Sept. 18.—In case you’ve been hiding under a rock, the biggest political furor of the month is all about signatures – whether the secretary of state’s office should release the thousands of names of the people who put this year’s gay-rights referendum on the ballot.

            Most of the debate has been a bit high-minded: Does disclosure mean harassment? Does secrecy mean the state’s vital public disclosure law is overturned?

            But it seems no one has asked an even more basic question.

            How come anybody thinks the signatures are a matter of public record in the first place?

            Until a couple of days ago, anyway.

            Turns out it’s the secretary of state’s call. He wants to release the names, but he could just as well say no.

And he’s choosing to battle it out in court.

            A Tactic That Aims to Embarrass – or Worse

What prompted the fight is this year’s Referendum 71, the public vote on the “domestic partnership” law passed by Washington's Democrat-controlled state legislature. Gay-rights activists are livid that a conservative coalition collected signatures, blocked the law from taking effect and put the issue on the ballot.

            So the activists promised to fire back with a plan never before tried in Washington state. They want to take all 121,780 names from the petitions and post them on the Web.

            The idea, explained Brian Murphy of WhoSigned.org, is to encourage "relaxed neighbor-to-neighbor conversations."

            Hogwash, say the referendum’s sponsors. The idea is to intimidate and harass – and perhaps discourage anyone from signing a similar petition again, for fear activists might come banging on the door. Gay activists tried the identical ploy a year ago in California, when the similar-minded Prop. 8 was on the ballot.

            State officials have taken an interesting position. The office of Secretary of State Sam Reed maintains that the petitions are a matter of public record, and that state public disclosure laws force him to provide the signatures to anyone who asks.

            Reed has been supported by the state attorney general’s office, which has taken a strong position in favor of disclosure. Most newspaper editorial pages are standing with them, seeing the matter as a fundamental challenge to the state’s public-records rules.

            Supporters of the referendum filed suit in federal court last week to block the release of the signatures, arguing that the tactic was a blatant effort to shut down public debate. The judge agreed, and issued a restraining order.

            The attorney general’s office has promised an appeal.

Not the First Time

            Actually, it’s not the first time it’s happened – it’s just the first time the entire state was paying attention. The first time signatures were released was three years ago, when Tim Eyman, the love-him-or-hate-him promoter of one ballot measure after another, was pushing Initiative 917.

            The measure, which would have required $30 car tabs, failed to qualify for the ballot after a signature count that became a matter of dispute. Eyman’s political opponents filed a public-records-act request with the secretary of state’s office. And the secretary of state’s office delivered the petition sheets in CD-ROM form – with all the hundreds of thousands of signatures open for inspection.

            It’s a tactic that worries Eyman – not to mention others who monitor Washington state’s election process. It’s not clear that those names were used to harass or embarrass voters. But they could have been used in exactly the way the gay rights activists are threatening to use them this year, as a way to expose those who sign petitions, invite retaliation and dissuade anyone from ever signing a petition again.

            Said Eyman, “Citizens should not be made fearful of exercising their first-amendment right to petition the government.”

Certainly Eyman has a stake in the issue – disclosure could have a chilling effect on his annual initiative campaigns, not just the political process.

            But Eyman maintains a more important issue is involved. A signature on an initiative petition is like a vote – and everyone agrees a vote ought to be kept secret. It’s not as though there is a legitimate reason for anyone to have those names. And he points out that there is a passage in state law that would allow the secretary of state to say no, if he wanted to.

Eyman raised the issue in a broadside to his legions of supporters on Wednesday.

And the funny thing is it turns out he’s right.

            Elections Officials Get to Decide

            The public records law gives state officials the right to keep some things secret. It says, “The exemptions of this chapter are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought.”

            And who gets to make the call?

            It’s the official that discloses the information – in this case the secretary of state.

            The office is relying on a 1998 opinion from the state attorney general’s office that says signatures on petitions should be disclosed, in case anyone ever asks for them.

            “Around this office, we listen very carefully to what the attorney general’s office has to say,” said spokesman Brian Zylstra.

            Practically speaking, the issue never really came up until recently, he said. From time to time, a political opponent of one initiative or another would ask for petition signatures. And the office told them it would be happy to provide the names – as long as the person making the request was willing to pay the photocopying charges. At 10 cents a page, the cost could have run into the thousands of dollars – and that was enough to keep the requests at bay.

            “Until 2006, no one bothered to buy the petition sheets because they couldn’t afford to,” he said.

But now that CD-ROMs are available – and records can be reproduced cheaply – it’s a whole different ball game.

            Reed Giving Up Without a Fight

            It never would have happened before Reed came along, said Don Whiting, who used to be one of the top officials in the office. Until Reed took over in 2001, the secretary of state’s office always took a hard line on any attempt to infringe on the voting process, he said.

            Whiting, now retired, was the state’s top elections official from 1974 to 1988, and then served as assistant secretary of state under Ralph Munro, from 1989 to 2000. Whiting has been watching the debate from the sidelines. To him it all seems a little baffling – he said the office seems to be looking for political cover, rather than fighting a battle that ought to be fought.

            Soon after the state’s public-disclosure law was approved by voters in 1972, Whiting said there was an initiative limiting pay increases for elected officials. Someone asked for signatures. There wasn’t any question that the petitions were public records, but the names were a different matter. The office offered to make copies and black out the signatures. The requester sued in Thurston County Superior Court and lost, then decided not to appeal. After that, when people learned they couldn’t get the signatures and a records request was pointless, most of them stopped asking.

Yes, Whiting said, the attorney general’s office offered a legal opinion in the late ‘90s that petition signatures might have to be disclosed.

“We did get some advice from the attorney general that we probably couldn’t survive a court challenge if one came up. But we probably would have ignored the advice at that point. Sam’s trying to make sure he has cover for the fact that he was in office the first time it came up.”

            Reed could just as easily have said no – so sue me.

            And if it got to that point, Whiting said he could have let the courts decide. The fact that a federal judge has blocked Reed shows that the attorney general’s opinion is just that – an opinion – and that the courts might feel otherwise. Why the office is appealing that decision is something Whiting has trouble understanding.

            The problem with disclosing signatures is so obvious that the office under Munro never would have stood for it, Whiting said. It discourages people from using the right to petition. “If you give those names away, would it discourage people from signing those petitions?” he asked. “I know of instances where employers might not like their employees signing petitions.”

            Hurts Free Speech

            All legal issues aside, the biggest political argument in favor of disclosing the names is that secrecy would undermine the state’s strong public disclosure laws. Among other things, those laws require state agencies to disclose public records on request, they clearly define what public records are, and they require that the identities of campaign contributors be clearly identified and disclosed. Without the rules, Washington citizens could be in the dark about the forces that hold sway in state and local government.

            But the law makes it easy to distinguish between petition signatures and campaign contributions, says Shawn Newman, an Olympia attorney who serves as Washington state representative to the national Initiative and Referendum Institute.

            There’s no question that disclosure of signatures can have a chilling effect on a vital government interest, he said. “If I knew that by signing a petition, my name could be vilified or publicly disclosed, it might have a chilling effect on my decision whether to sign,” he said.

            The state has used the exemption in the past when privacy is a concern – for instance, it doesn’t disclose names and addresses of law enforcement officials when prisoners request them.

And he said it all comes down to the idea behind the public disclosure act. “It’s to hold government accountable; it’s not to hold citizens accountable.”

            The real issue is that bureaucrats hate initiatives, he argues – they think government would be more efficient if people didn’t get in the way.