Supreme Court shreds a public records law

Wednesday, June 30, 2010

THE SUPREME COURT got it right last week when it declined to strike down a Washington state law that allows the names of petition signers to be made public.

But the court left open a worrisome possibility: Petition signers could block disclosure on a case-by-case basis if they convince a judge that they will be subject to harm if their names become public. The 8 to 1 majority sent the case back to a federal trial court to determine whether the plaintiffs in this case had sufficient evidence to win on this claim. (Disclosure: The Washington Post Co. joined a friend-of-the-court brief in support of the state of Washington and its public records law.)

The decision comes in a case involving Protect Marriage Washington, which hopes to repeal a legislative measure that extends legal protections to same-sex couples. The group circulated petitions to gather enough signatures to put the measure up for referendum. Members of the group went to court to block release of the signatures under the Washington Public Records Act; they pointed to incidents in California where opponents of same-sex marriage whose names had been made public after signing a petition became victims of harassment, threats and vandalism.

Intimidation of political participants is reprehensible; it is also against the law, and law enforcement officials should act decisively to punish such acts. But blocking the release of petitions -- even in campaigns that are extremely politically charged -- is not a palatable solution.

Ordinary citizens take on the role of public actors by signing a petition to bring a matter to a public vote. They are, in essence, citizen legislators. Putting these records out of public reach would be analogous to allowing elected officials to vote anonymously on legislation -- a prospect that no electorate should condone. Such secrecy would also severely undermine the public's ability to police and expose corruption. Prohibitions of this type could also bleed into other areas of the law and affect a whole host of state and federal records routinely subject to disclosure.

Many of the justices who voted to allow a case-by-case challenge made clear that petitions should have to jump a high hurdle before prevailing -- a qualification that is welcome under the circumstances. But Justice Antonin Scalia has the better of the arguments: Petitions are a public tool that should never be kept from public view.

"I do not look forward to a society which . . . exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism," Justice Scalia wrote. "This does not resemble the Home of the Brave."

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