Antonin Scalia apparently is troubled by the thought of any decline in the Home of the Brave. For that and many other reasons, the U.S. Supreme Court justice joined seven colleagues last Thursday in authorizing the disclosure of the names of people who sign referendum and initiative petitions. Congratulations to Washington State Attorney General Rob McKenna for making the case before the high court so compellingly that it drew a bipartisan 8-1 approval.
The ruling was proper because it accurately defines initiative and referendum petition-signers as — essentially — would-be law-changers. The public has the right to know who is trying to change the law, whether those legislators are professionals (politicians) or amateurs (petition-signers). Further, our state’s grand tradition of open government demands this kind of transparency.
Scalia eloquently explained this principle in his written opinion: “For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.” So true.
This case was brought before the Supreme Court by Protect Marriage Washington, an activist group fighting disclosure of names of people who signed petitions for Referendum 71. Washington voters (53 percent of those participating) last year rejected that ballot measure and, in so doing, retained “all but marriage” domestic partnership rights passed earlier by the Legislature.
R-71 supporters claimed that disclosing the names could subject the signatories to harassment. That concern is understandable, but as Scalia wrote, “There are laws against threats and intimidation, and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Or, as we have editorialized, Washingtonians would never put up with legislators trying to change laws anonymously; why should they accept such efforts among practitioners of direct democracy?
The R-71 case, technically, remains unresolved because the Supreme Court ruled only on the broader issue as brought by Protect Marriage Washington. The court also ruled that the R-71 activists still may appeal for an exemption to the broader ruling, and such appeal is expected. However, arguing that case in the shadow of the court’s 8-1 ruling would loom as a daunting task.
Also to the harassment issue, Washington Secretary of State Sam Reed said in a statement: “I understand privacy concerns in the Internet era and the … fear of harassment or retaliation … We have a long history of debating and voting on some very difficult and personal issues in a civil way, and I believe we will continue to do so.”
The bipartisan nature of this ruling (only Justice Clarence Thomas dissented) is quite stunning in today’s political environment. Scalia, McKenna and Reed all are Republicans, yet disclosing the identity of petition-signers has been urged more forcefully by liberal elements of government, talk shows and society in general. Last week’s ruling is refreshing evidence that protecting the people’s right to open government remains the responsibility of all public officials, party affiliation notwithstanding.
And here’s one last tip of the hat to McKenna: In 2008, the state attorney general secured Supreme Court approval of our state’s highly controversial top two primary, by a 7-2 ruling. Now he’s up to 8-1. The kid might have a promising career in law some day.