The last time Rob McKenna appeared before the venerable U.S. Supreme Court, it was as a grim underdog, defending what was viewed by many people at the time as a bizarre method of advancing politicians from primaries to elections. He walked away from America’s nine most powerful arbiters with a 7-2 endorsement of the top two primary.
That was 13 months ago. Next week, our state’s audacious attorney general will argue again before the Supreme Court, this time defending Washingtonians’ right to transparency and accountability in government. Accompanied by Secretary of State Sam Reed, McKenna on Wednesday morning will urge the high court to allow the state to make public the names of those who sign petitions for initiatives and referenda. The court is expected to issue a ruling within a few months.
McKenna and Reed correctly believe that the names of 138,000 people who signed Referendum 71 petitions last year should be made public. R-71, passed by 53 percent of voters, upheld legislation that extended “everything but marriage” rights to state-registered domestic partners, same-sex as well as heterosexual couples with at least one partner age 62 or older.
Opponents argue that such action by Reed’s office would subject those petition signers to possible intimidation or harassment by gay-rights activists. Those foes must be oblivious to these two facts: Harassment already is against the law. Second, anyone who signs a public petition (typically in a public place) that alters public law is stepping forward in the public arena as a citizen legislator. And as we have editorialized repeatedly, no one who attempts to change the law should be allowed to do so secretly. No one would ever tolerate such clandestine machinations by elected officials, nor should the people allow such action by themselves.
To legislate anonymously is to violate the spirit, no, the outright mandate of the Public Records Act that was overwhelmingly approved by 72 percent of voters in 1972. It’s one of our state’s finest documents. The act inspired Reed’s vow earlier this year to defend “the public’s belief that our state and local public documents must be available for public inspection.”
The road to the Supreme Court has been marked by two rulings. U.S. District Judge Benjamin Settle last year ruled that release of petition signers’ names would violate a constitutional right to “anonymous” free political speech. In our view, that narrow view wrongly protected not only secrecy in legislative efforts, but also secrecy in the monitoring of public documents. After all, elections officials must certify that petitions are legal as presented, and who would hold those officials accountable if their work is not available for public inspection? Later, a more rational perspective was supplied by the 9th U.S. Circuit Court of Appeals, which upheld Reed’s belief that the Public Records Act requires release of petition signers. An appeal by Protect Marriage Washington activists sent the case to the Supreme Court.
Like McKenna’s vanguard stewardship of the top two primary last year, this case has drawn national attention, because the Supreme Court’s decision will affect all referenda and initiatives in our state and will set a precedent for many other states that are conducting similar debates. Ultimately, this case is not so much about petition signers or R-71 or McKenna or Reed or Protect Marriage Washington. It’s about the sunshine that was given radiance 38 years ago, when Washington voters left no doubt about our zeal for full illumination of all endeavors affecting our state’s laws.
All Washingtonians should hope McKenna’s persuasive efforts before the Supreme Court are as compelling next week as they were last year.