BILL REQ. #:  H-4055.2 

Read first time 01/12/10.   Referred to Committee on State Government & Tribal Affairs.

     AN ACT Relating to adopting the right to anonymous political speech act of 2010 by clarifying that state law does not require or authorize the release of the name, signature, and/or address of any individual who signs an initiative or referendum petition; amending RCW 29A.72.230; adding new sections to chapter 42.56 RCW; creating new sections; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   This act may be known and cited as the Washington right to anonymous political speech act of 2010.

NEW SECTION.  Sec. 2   A new section is added to chapter 42.56 RCW to read as follows:
     (1) The legislature finds that the rights of citizens to free speech, to privacy, and to peaceably assemble and petition the government for redress of grievances are among the most fundamental rights protected by the United States Constitution and the Washington state Constitution. Inherent within these rights is the right of individuals to engage in anonymous speech, speech that has played an important role in the progress of mankind, such as the Federalist papers. The United States supreme court has recognized there is nothing inherently suspect with an individual wanting to keep his or her support for an issue private noting that the decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. The public release of initiative and referendum petitions containing the names and addresses of Washington residents pursuant to Washington's public records act threatens to undermine the goals of these fundamental rights as protected by the United States Constitution and the Washington state Constitution to encourage uninhibited, robust, and wide open debate, and will create a reasonable probability of exposing those individuals to a significant risk of threats, harassment, and reprisals. By publicly disseminating the names of individuals signing an initiative or referendum petition, individuals and organizations may hope to make it personally, economically, and politically unpopular to advocate a particular position on sensitive, controversial issues of critical importance.
     (2) The legislature further finds clearly and unambiguously that there has been a privacy policy in place in Washington state for over ninety years. From 1912 until 2006, citizens exercising their political free speech rights by affixing their names, signatures, and home addresses on ballot measure petitions in Washington were protected and every secretary of state until recent times protected citizens' privacy. In 1973, the secretary of state was sued by a state senator for refusing to turn over the names, signatures, and home addresses of citizens who signed petitions to cap politicians' pay. The secretary of state in that case made clear the office's longstanding practice, supported by attorney general opinions issued in 1938 and 1956, of not releasing such information saying it had long been their office's policy to not release the names of citizens signing initiative or referendum petitions, that the release of such information had no legal value, that the release of such information could have deep political ramifications to those individuals who signed the petitions, and that he or she would not violate the public trust by releasing such information. The attorney general's office further made clear that the public records act, Initiative 276 which passed the previous year, required the attorney general to redact that personal information, stating that section 26, chapter 1, Laws of 1973 (Initiative 276) provided that to the extent required to prevent an unreasonable invasion of personal privacy, an agency shall delete identifying details when it makes available or publishes any public record.
     (3) The legislature recognizes that although current law provides for the limited exposure of petition signatures to public scrutiny during the signature counting and verification process, it restricts that exposure to the least intrusive extent possible in order to maintain the maximum extent of privacy possible for the individual providing his or her name, signature, and home address on the petition.
     (4) The legislature intends by this act to reiterate and reaffirm that the state of Washington lacks a compelling interest sufficient to justify the public disclosure of information in initiative and referendum petitions, that the release of the names and addresses of persons who sign such petitions constitutes an unreasonable burden on an individual's rights to free speech, to privacy, and to peaceably assemble and petition the government for redress of grievances, that if the law were to be applied in a manner to require the public disclosure of the names and addresses of petition signers the result would significantly inhibit communication with voters about proposed political change such an application is not warranted by other state interests, such as administrative efficiency, fraud detection, and informing voters, alleged to justify the release of such information, and would result in compelled political speech which is politically and legally unacceptable.
     (5) The legislature does not agree with or accept the secretary of state's or attorney general's understanding and position on the law or legislative intent in Doe #1, John, et al. v. Reed, Wa Sec. of State, et al, 09A356-10-19-09, and reasserts and clarifies that the law of this state, including the Washington public records act, RCW 42.56.001, et seq., was never intended to and does not require or authorize the release of initiative and referendum petitions containing the names and addresses of Washington residents, rather it is intended and designed to protect the privacy of citizens who sign initiative and referendum petitions and to prevent the release of such information. To prevent any potential miscarriages of the law, the legislature finds it is necessary to amend chapter 42.56 RCW. This amendment is intended to be curative in nature only.

NEW SECTION.  Sec. 3   A new section is added to chapter 42.56 RCW to read as follows:
     Nothing in this chapter or other provision of law requires or authorizes the release of the name, signature, and/or address of any individual who signs an initiative or referendum petition. Signature petitions for initiatives or referenda are exempt from public inspection and copying.

Sec. 4   RCW 29A.72.230 and 2003 c 111 s 1823 are each amended to read as follows:
     (1) The legislature recognizes there is a legitimate reason under this section for limited public inspection of an initiative or referendum petition by persons representing the advocates and opponents of the proposed measure as observers to ensure governmental officials who are verifying and canvassing the names of the legal voters on a petition are properly examining the signatures in order to determine that petitions with a sufficient number of valid signatures move forward and that petitions with an insufficient number of valid signatures do not move forward, so long as such observers make no record of the names, addresses, or other information on the petitions or related records during the verification process, except upon the order of the superior court of Thurston county. Such an inspection is exclusively for the limited purpose of making sure governmental officials are properly doing their jobs and does not allow one private citizen to invade the privacy of another private citizen.
     (2) Upon the filing of an initiative or referendum petition, the secretary of state shall proceed to verify and canvass the names of the legal voters on the petition. The verification and canvass of signatures on the petition may be observed by persons representing the advocates and opponents of the proposed measure so long as they make no record of the names, addresses, or other information on the petitions or related records during the verification process except upon the order of the superior court of Thurston county. The secretary of state may limit the number of observers to not less than two on each side, if in his or her opinion, a greater number would cause undue delay or disruption of the verification process. Any such limitation shall apply equally to both sides. The secretary of state may use any statistical sampling techniques for this verification and canvass which have been adopted by rule as provided by chapter 34.05 RCW. No petition will be rejected on the basis of any statistical method em- ployed, and no petition will be accepted on the basis of any statistical method employed if such method indicates that the petition contains fewer than the requisite number of signatures of legal voters. If the secretary of state finds the same name signed to more than one petition, he or she shall reject all but the first such valid signature. For an initiative to the legislature, the secretary of state shall transmit a certified copy of the proposed measure to the legislature at the opening of its session and, as soon as the signatures on the petition have been verified and canvassed, the secretary of state shall send to the legislature a certificate of the facts relating to the filing, verification, and canvass of the petition.
     (3) Signature petitions are exempt from public inspection and copying in accordance with section 3 of this act.

NEW SECTION.  Sec. 5   The provisions of this act control in the event of a conflict between the provisions of this section and other state or local laws and regulations.

NEW SECTION.  Sec. 6   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 7   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.