Saturday, September 19, 2009

Open Secret

In local news, there is a continuing low-level controversy over Referendum 71, which is intended to put a state law, commonly known as the everything-but-marriage law, to a public vote. A bit of the backstory: the state legislature basically passed a law expanding domestic partnership rights. Religious conservatives and activists (under the clich├ęd and disingenuous name of "Protect Marriage Washington") were more or less immediately up in arms, and came up with Referendum 71. Their goal, stated simply, is to have the new law voted out of existence by the public. For those of you fortunate enough to not have to deal with this sort of malarkey, the process starts like this: After whomever comes up with the proposed Referendum/Initiative formally writes it up, they have to gather signatures to have it put on the ballot in the next election cycle.

Now, under normal circumstances, the names of everyone who signs a petition to have a measure placed on the ballot is a matter of public record. And here's where the controversy begins. Working under the assumption that each and every person who signed the petitions to have Referendum 71 placed on the ballot supports the goal of the Referendum backers - namely to keep domestic partnership rules from being expanded, Gay rights activists want to publish all of the names on a website. Their ostensible goal is to allow for people who would be barred (namely Gays and Lesbians) from taking advantage of domestic partnerships to know who's standing in their way. Pretty much everyone else understands the goal is to allow angry people so show up on the doorsteps of signatories. So, the people behind the referendum went to court to block the release of the names. The state is the defendant, given that it's a state open government law being challenged.

Right now, it's looking like the names won't be released. U.S. District Judge Benjamin Settle doesn't feel that an important enough public purpose is being served. The state disagrees.

"When people sign a referendum or initiative petition, they are trying to change state law," [Brian Zylstra, spokesman for Washington Secretary of State Sam Reed] said. "We believe that changing state law should be open to public view."
Zylstra had come to the correct conclusion (government should be open) - but he arrived there through execrably wrong reasoning. I'm pretty sure that no state law has ever been changed simply because people signed a referendum or initiative petition. The process that changes state law is VOTING on the referendum or initiative once it on the ballot - and the voting process here, like everywhere else, is anonymous.

Properly speaking, the whole idea of gathering signatures is to determine whether or not some percentage of the voters feel that a) this is something that should be voted on by the whole of the voting public, or b) it's a waste of time and ballot ink. What's ended up happening is that the petition drive has become, in effect, a referendum on the referendum, and signing the petition is taken as evidence that the signatory supports the goal(s) of the Referendum/Initiative. In other words, the process is seen as an initial demonstration of support for the measure, that determines whether or not it's worth taking to the ballot.

Judge Settle, the Secretary of State's Office, Protect Marriage Washington and the Gay rights activists are all working, through the way they talk about this case, to conflate the petitioning process with the voting process, when these should be kept separate. This reinforces the misconception already at work. If I sign a petition to have something put on the ballot - or decline to sign - that's independent of whether or not I would vote For or Against - I'm only expressing an opinion as to the appropriateness of a public vote.

I can (grudgingly) understand the activist groups on both sides getting it wrong, but I would expect the the Secretary of State's Office and the Judiciary to be able to understand the difference between "Should this proposed change be voted on by the general public?" and "Should this proposed change be enacted into law?" I understand that interest groups have hijacked the petitioning process, deliberately work to blur the lines between it and the voting process, but this should be resisted, not given legal standing.

Of all the factors to base legal precedent on, public misunderstanding seems a flimsy foundation.

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