The United States Supreme Court last week granted certiorari (the legal term for the Supreme Court agreeing to accept an appeal for review) to review the Ninth Circuit Court of Appeals decision that the names and addresses of Referendum 71 signatories could be released under the Washington Public Records Act consistent with the First Amendment.
Previously, this column erroneously predicted the Court would not accept review. The grant of review here should be assessed in conjunction with the Supreme Court’s recent decision not to allow the broadcast of the federal trial ongoing in California over the constitutionality of Proposition 8, the amendment to the California Constitution that overturned the gay marriage decision by the California Supreme Court and limited marriage to a man and a woman. The proponents of Proposition 8 argued, similar to the Referendum-71 case, that persons testifying in favor of Proposition 8 (i.e. against gay marriage) will be subject to harassment.
These two actions suggest that at least four members of the Supreme Court (the number necessary to grant certiorari) are inclined to believe that exposing yourself as anti-gay (marriage) puts yourself at significant risk for harassment. One wonders where that belief comes from as the record in the Washington case was lacking in actual examples of harassment (although there was a somewhat more developed but still weak record in California on that point). And the State of Washington strenuously pushed the lack of evidence of harassment in their briefing and argument. Perhaps the belief stems in part from the personal experiences of some of the Justices who were severely and sometimes hostilely criticized for taking legal positions perceived as anti-gay. But, of course, Justices are not supposed to bring their personal experiences to their decision-making.
Looking with trepidation at the crystal ball, the State has a tough fight ahead. Statistically, the grant of cert most often results in reversal. And if the Court gives credence to the argument that publicly taking an anti-gay stand subjects a person to harassment that potentially chills political activity, then the State faces a difficult burden in justifying the release of signers’ names and addresses. The State can prevail on the basis that openly signing a petition is not anonymous speech, an argument that makes sense, and takes away the first amendment argument.
The State can also prevail on the basis that the initiative and referendum process is akin to legislative action where legislators (or signers to a referendum) have openly to vote their views of proposed laws, again avoiding the first amendment argument. But otherwise the State will have to show either there is no harassment or that the release of the names and addresses is justified by a substantial government interest and the disclosure law is narrowly tailored to that interest.
The government interests at stake here are the integrity of government (public access to government records assures transparency and accountability of government action) and the integrity of the electoral process (assuring that the required numbers of legal signatures were gathered). The State has strong arguments in light of these interests but only until the signature verification process is complete and no longer subject to legal challenge. After that point, the State’s justification for releasing names diminishes. And, because the stated purpose of some records requesters is to post names on the internet to encourage political debate is an interest unrelated to the government interests above, the Court is likely to weigh in favor of the political speech interests being asserted by the petitioners.
There is a wild card element at play here. The case is the first to reach the Supreme Court concerning the constitutionality of state public records laws. Most states have laws similar to Washington’s public records act. And the federal government has the freedom of information act. Many state and local governments will weigh in on Washington’s side. Given the potential broad implications of the case, the Supreme Court likely will rule narrowly. But even a narrow ruling that the release of records violates the first amendment will open the door to other first amendment and privacy challenges to public records laws.
This column also recently discussed the decision of the Ninth Circuit holding that the state’s criminal justice system violates the federal Voting Rights Act and therefore, as a remedy, felons in Washington are being given the right to vote. In addition to the substance of the case, there is a political angle at play. Our Attorney General Rob McKenna has made a big deal about appealing the decision directly to the Supreme Court and stating that the case is so important that he personally will argue the case. The case is important and General McKenna (yes that is the proper title for the attorney general) is a fine litigator and surely will do a great job. But McKenna personally argues only a few of the State cases on appeal and gets to choose which ones.
So likely there are two other issues at play. McKenna loves the politics of being anti-felon. He previously argued in a different case before the Washington Supreme Court that felons who have not completed the financial obligations of their sentence should not have the right to vote and in his re-election bid regularly talked up that position and his personal commitment to it. Bashing felons is good politics. And so McKenna’s bashing felons helps his ambitions for higher office. Moreover (and only partially in light of this) felons, if granted the right to vote, likely are not going to vote for a Republican like McKenna. The prospect of tens of thousands of felons voting in an election in which McKenna is seeking higher office has to be frightening to him. So he has a personal interest at stake in the felon case as well as the State’s interest.
McKenna has previously argued two cases before the Supreme Court as Attorney General. Both also played well politically for a Republican angling for higher office. One was an anti-union free speech case brought by the right/republican Evergreen Freedom Foundation against the Washington Education Association about the use of Union dues. The other was the constitutionality of the non-partisan primary initiative. The State and McKenna won both cases. But the point here is the choice of cases that McKenna chooses to argue. There seems to be a political component to his decision.
So that brings us back to the Referendum 71 case. The politics of that case for a Republican are not clear. And McKenna has not yet decided whether he will argue in the Supreme Court. That decision should come soon. It will be interesting to see what he decides.
