Petitioners and Privacy

November 5, 2009

You probably know by now that Maine voters overturned a law approving same-sex marriage. But Tuesday brought one bit of good election news: voters in Washington approved Referendum 71, albeit by a narrow margin. Referendum 71 asked voters whether they supported the state legislature's decision in the summer to expand the rights of same-sex couples, effectively giving them most of the rights of married couples without using the term "marriage."

But why was Referendum 71 on the ballot anyway? As has happened in a few states now, voters opposed to same-sex unions decided to take action to block the state legislature's decision. Various groups opposed to same-sex marriage successfully launched a petition drive in Washington to place a referendum on the ballot that could overturn the newly enacted statute.

Which brings me to the subject of today's post. Some gay rights advocates wanted access to the names of those who signed the petition. The group principally responsible for sponsoring the petition drive, Protect Marriage Washington, sued to prevent release of the names, arguing that release of the identity of the signers placed them at risk of being harassed. A federal district court judge agreed, and after various rounds of litigation, the Supreme Court ruled on October 20, upholding the district judge's decision to ban release of the names.

Some gay rights groups have claimed foul, saying that the signatures should be considered a matter of public record. And that authority on all things, Stephen Colbert, even did a piece poking fun at the petitioners, who he claimed merely want to keep their bigotry private.

I disagree. Signing a petition is not that different from voting. And for the same reasons that we use the secret ballot, we should not disclose the identity of people who sign petitions. Presumably, we want to encourage people to express their true views, whatever they are, and not to suppress them out of fear of retaliation, even if those fears may be somewhat exaggerated (as I think they were in this instance).

Two arguments on the other side that I have heard are, first, that state and federal laws typically require the disclosure of financial contributors to political campaigns, including campaigns involving referenda. True, but disclosing the identity of contributors serves the purposes of deterring corruption and of enforcing limits on campaign contributions. We have a right to know who may be trying to buy influence and who may be funding campaigns. There is no comparable benefit to disclosure of signatories to a petition.

Another argument is that petitioners should have the courage of their convictions and should be willing to have their names disclosed to the public. In principle, I agree. In many cases, petitioners are proud to disclose their names, even when there is a clear risk to their safety, as opposed to a speculative risk. (To take but one example, think of the petitions the American colonists submitted to the British government.) But laws are made to protect the timid as well as the courageous. If someone does not want her/his name disclosed, we should not force disclosure.

Finally, it is unfair to maintain that the request to withhold petitioners' names serves only as a cover for bigotry. Depending on the circumstances, it can provide significant protection to those fighting bigotry. The only other time the Supreme Court addressed a comparable issue was in the 1950s when Alabama wanted to compel the NAACP to disclose membership lists. Wisely, the Court decided such a requirement was unconstitutional as it would have had a chilling effect on citizens' rights of free association.

Let petitioners keep their names hidden from public scrutiny if the want. It will not affect discussion of the substantive issues presented by any petition, and it may just foster participatory democracy.

Comments:

#1 gray1 on Thursday November 05, 2009 at 10:09am

Why would anyone even sign a petition regarding a public policy if he or she was unwilling to let “the public” know their position on that matter?  That’s the whole idea of what petitions are for and I for one want to know these people who sign are for real mainly because any fool or even a bank of ghost writers can sign a “petition” for anything.  In such a case secrecy does not serve democracy, but rather a form of manipulation.

If privacy is wanted, that would be a venue for an actual vote on the matter at hand wherein the voters are first qualified and then can submit their vote in secret according to their own desires.  That’s called enabling a free society.  The idea in either case is to express qualified support for a matter which might very well otherwise be subject to fraud. 

In this particular universe, however, how the “card check” thing regarding union votes ever came to mean the process of identifying each individual voter with the way of his actual vote would seem to have but one purpose and that is to enable thuggish intimidation, but perhaps I digress.  Surely the gay movement has no intention of being thuggish, even if it is apparent that at least one judge disagrees.

#2 gray1 on Thursday November 05, 2009 at 10:24am

P.S.  Really now, if a copy of such a petition continues to exist anywhere it is quite likely to find it’s way into public scrutiny sooner or later.  If it has all already been destroyed to “protect the innocent” then with 20/20 hindsight it is clear that the idealistic Nixon should have utilized the same security policies as the more realistic Clinton.

#3 Ronald A. Lindsay on Thursday November 05, 2009 at 12:05pm

Petitioners’ names are checked by state officials to determine authenticity. And petitions are maintained by the state as long as they are relevant. The issue here is whether the names should be disclosed to the general public.
Apparently some opponents of same-sex marriage claim they have been subject to harassment. I tend to be skeptical of such claims, but the larger point is that people should feel free to petition the government without fear of harassment from fellow citizens, and one can certainly think of circumstances where some petioners may have cause for fearing harassment (e.g. persons in small town Mississippi who want the city government to take down a Christmas display).

#4 Randy on Thursday November 05, 2009 at 2:13pm

I disagree with the article.  Signing a petition is definitely not like voting.  It is an official communication to your government that you want them to take some particular action (such as having a referendum).  Otherwise, we’d just go right to the vote.  The general public has a right to know who is lobbying the government on important issues, especially if it causes an election.  Also, due to the expense and logistical difficulty of doing this, the petition gatherers are not supervised in a rigorous manner similar to a vote.  Without being able to check independently whether the signatures are valid, or whether people were duped into signing (in the case of two opposite petitions) the process becomes open to easy fraud.  Given the Bush-era echo chamber, it’s not unreasonable to be suspicious that a government may issue a petition and claim to get sufficient signatures for it.  The public must be able to verify it for themselves.  Any issues of harassment are irrelevant.  We have laws for that.

#5 SimonSays on Thursday November 05, 2009 at 8:12pm

I’m with Ron on this one for a simple reason: why is it beneficial to the public good to know the names of petitioners?

It doesn’t seem like there’s a compelling public interest in disclosure that would outweigh the harassment.

As long as there is a good process in place that all parties can agree on to confirm authenticity, I think keeping names private will encourage people to petition their government.

#6 gray1 on Friday November 06, 2009 at 9:20am

So who’s watching the watchers if not us the public?  Even within our legal system with my admittedly very limited exposure to same as a juror I’ve managed to witness what basically amounts to a smoke filled star chamber with lots of snickering going on among our “public servants” as they themselves decide what’s appropriate to be deemed “the whole truth”. (Threatening to gag the defendant if he says the wrong thing which apparently might somehow bias the jury.)

Dare I suspect that any agenda driven political party will not always act above board when given the opportunity to bias something in their own favor?  How about when there’s money and power to be had?
How about when there’s actual lives on the line? 

It’s bad enough when we have to suspect that even the election voting process has been corrupted, so I’d like to at least see who’s actually running things if it’s supposed to be “the people” who at least seem to initiate any action via the petition process.  And yes, we have laws in place to punish cases of harrassment, but apparently even the judges feel that part of their own system does not work either.

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