Supreme Court says Washington referenda ballot names are public

Washington state has resolved an issue with the help of the Supreme Court. Turns out referendum ballot names are public, after all.

Referendum 71 expanded the state domestic-partnership law to grant certain marriage benefits to gay couples. Anti-referendum citizens got the referendum back on the ballot for a vote, and pro-referendum citizens wanted names. Those who got the referendum back on the ballot sued to block the disclosure of those names.

The issue was whether disclosing the names of those who got the referendum back on the ballot would violate the signers’ First Amendment rights. This argument stated that public ballots would ultimately lead to a chilling effect on expression and civic involvement; votes on sensitive issues made public would lead to harassment of those who vote in unpopular ways. The other perspective was to note the legislative nature of voting on referenda. Legislating comes with the presumption of complete openness equal to the importance public votes in a legislature. In this view, referenda votes are public by their very nature.

The Supreme Court ruled that petition signers’ names are not private in an 8-1 decision, with Thomas dissenting.

Repeated themes stressed the significant flexibility of states to implement their own voting systems, the importance of preserving the integrity of the electoral process and the promotion of transparency and accountability in the electoral process.

The justices said the plaintiff, Protect Marriage Washington, had not made the case its petition signers were any more subject to harassment than petition signers on issues as potentially emotional as taxes and property rights. This was one of the major points of those fighting to keep names private: those supporting unpopular positions would be in peril if their privacy was not respected. This lack of security would severely hinder people’s ability to express themselves.

There was also the viewpoint that the actions of private citizens are not a part of transparency: transparency involves the actions of government made public, not the actions of citizens. However, since voting on referenda can be seen as akin to making legislation as noted above, it would be of utmost importance that the votes remain public.

“Remain” public: that was another part of the pro-disclosure argument back in April: petitioners’ names are available through the state’s open records act, the Washington Public Records Act. In essence, the names were already public.

The justices, while deciding that disclosure was necessary, told the plaintiffs they could go to a lower court to get a specific exemption on other grounds besides 1st amendment issues. The chief lawyer said they would do just that.

The balance between privacy and open government remains delicate, and the fact that the court left room for future exemptions begs the question: how much of referendum information will ultimately be deemed public, and how will these lines be drawn?

CORRECTION: One commenter notes: “The issue was not about anti-referendum VOTERS, but the names of those who signed the referendum petition to put it on the ballot. The VOTER information is still private.”