California’s government code says that, in general, initiative petitions aren’t public records. That should change – if the U.S. Supreme Court doesn’t get in the way.
The court recently – and unwisely – stepped in and blocked the release of the names of those citizens who signed a Washington state referendum petition to reverse a law granting more rights to registered domestic partners there. The court’s 8-1 decision was temporary, but the court won’t fully revisit the issue until after this November’s election is over.
Gay rights groups, seeking to put public pressure on those who signed a petition to limit domestic partner rights, have sought the public release of the petitions. Gay rights opponents (who are Referendum 71’s supporters) have fought the release, saying that it would subject the signers to harassment and worse.
A few thoughts:
In the particular case, gay rights groups have done themselves – and the cause of open government – no favors by putting the names, home addresses and phone numbers of their opponents on the Internet (sometimes with mash-up maps). Boycotts and public pressure are an important part of the American tradition, but this tactic is, if anything, hardening opposition to the just cause of marriage equality. Since there’s no strong argument for denying equal rights to gays, gay rights groups are giving their opponents a gift, allowing them to rally around this attack on their privacy. In too many cases, we’ve already seen harassment and vandalism against the person, homes and businesses of gay rights opponents. This doesn’t help anybody. I understand the anger at measures like Referendum 71 and Prop 8 (heck, I share it), but this kind of tactic is self-defeating. Knock it off.
But on the issue of principle, gay rights groups are right – initiative and referendum petitions should be public record. Signing such a petition is not like voting in an election, where such voting is confidential. It is in every way a public act. People sign the petitions in public (often in front of the store or on the street). The petition circulator and other people signing the same petition can see their names. And the petitions are delivered directly to the government. The petitions also have real legal standing; if enough signatures are submitted, the measure in question reaches the ballot. Signing an initiative or referendum petition is an act of legislation, and legislative acts should be public.
What about harassment and vandalism once names are revealed? Go after the perpetrators. But that’s no reason to violate basic principles of open government.
Those who want to keep the petitions private are offering the bogus argument that such petitions are protected as "anonymous" communication with the government. C’mon. The names are on the petition, so this isn’t in any way shape or form an anonymous exercise. If you’re serious about keeping initiative petitions anonymous, you have to allow people to indicate they support a petition without giving their name. And then what? How would anyone know that the voters who signed were real without their names? The whole notion of an anonymous initiative and referendum petition is, as a practical matter, ridiculous.
To argue that initiative and referendum protections shouldn’t be public documents is to argue for defense of government power, not for privacy. This argument boils down to this: it’s Ok for the government to see who is signing petitions (since they receive the petitions with names) but it’s not OK for the public.
Unfortunately, that authoritarian attitude is codified in California law. Once the Supreme Court comes to its senses and reverses itself, the legislature should fix that immediately and make such petitions subject to the California Public Records Act.