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Signing with invisible ink

The public records battle over signatures to the Washington Referendum 71 – the proposed repeal of the new “everything but marriage” domestic partnership law – is going national. Wendy Kaminer in the Atlantic has a piece on the dispute, not about about the merits of the referendum itself but about a side issue – whether the signatures are a public record.

The referendum (to overturn the law) was launched by the group Protect Marriage Washington and the Faith and Freedom Network, which is trying to collect the 120,577 petition signatures needed to bring the issue to the ballot.

Their opposition is taking a number of approaches, of them being a close monitoring of the signatures. From the group

When signatures for Referendum 71 have been verified WhoSigned.Org will:

Work to make this public record signature information accessible and searchable on the internet.
Flag the 3% signature sample that is certified by the Elections Division of the Secretary of State.
Provide Washington State Voters with a way to check that the public record of their advocacy is correct.
Provide Washington State Voters with a way of reporting when their signature has been recorded either fraudulently or in error.

The concern with that is one of harassment. Attorney James Bopp argued that “Individuals must be allowed to debate the merits of Referendum 71 without having to worry about whether they will be harassed for offering an opinion.” The spokesman for a key anti-referendum group, Josh Friedes, campaign manager for a coalition of supporters, Washington Families Standing Together, seemed to indicate some concern with the publication effort, and stood neutral on the lawsuit.

Bopp took his argument to court, and federal District Judge Benjamin Settle last week granted a temporary order preventing public release of the referendum petitions, at least until another hearing on the matter in September.

Kaminer’s view in the Atlantic is similar to Bopp’s: “The claim that publicizing the names of people who sign controversial petitions will chill political participation is not far-fetched or trivial. The countervailing interest in transparency – when it requires exposing private citizens (not public officials or organizational leaders) – to public opprobrium for their political views, seems relatively weak by comparison. Transparency is not an end in itself but a means of insuring accountability – of public officials and, arguably, public figures and movement leaders. But why should ordinary, private citizens be held to account for their views in the public sphere?”

Why? Most basically, because signing a petition for an initiative or referendum is more simply holding or expressing an opinion as a private citizen: It is taking part in the public lawmaking process, one in which that person’s name (together with others) is specifically being used to effect a public result. It is not the same thing as talking to a friend, or even dashing off an anonymous post to a blog. It is an official act, with official consequences. There’s nothing wrong with doing that, of course, as long as you believe in what you’re signing. But if you’re going to do it, the least the rest of us should expect is that you do it in the sunshine, that you have the courage of your convictions.

Not to mention the point that the list of names ought to be open to review and challenge, in the case that someone involved should take it into their heads to do something illegal, in this case where the number of valid signatures may be very close to the legal requirement.

What about the prospect of harassment?

Actual harassment generally is illegal and can be prosecuted (and it ought to be, if it interferes with or disrupts people’s expression of their views).

But there’s little evidence of it happening in cases like this. Kaminer, in support of the concern, does have one link to a story at CNSNEws (“The Right News. Right Now” – you get the point) which suggests mass harassment over Proposition 8 in California but provides little evidence of it other than a scattering of hate emails (to whom or from whom is left unclear), and demonstrations by pro-gay groups (which don’t constitute harassment anyway). BTW, CNS, or Cybercast News Service, was originally founded as Conservative News Service in 1998; its chief editors have comes from the string of national conservative media and political organizations. It has, in other words, an agenda, which Kaminer might have been better advised to point out.

The Atlantic piece also drew this fascinating comment from Tom Lang, who quickly explains his background in the case . . .

Ms. Kaminer is failing to do any research on this topic. I am the Director of, the organization which Washington based, contacted to post the names of Ref 71 online. (KTN) has worked in 3 other states, Massachusetts, Florida and Arkansas and has posted the names of over 800,000 signers of anti-gay petitions. There have been no problems of our postings in these states. KTN’s work exposing fraud and generating the base with our strategy proved an important part of saving same sex marriage in Massachusetts. In Florida, where we posted the names (during the process) of about 650,000 the leadership in the Gay Equality group understood the importance of KTN, distanced themselves, and handled the messaging in a positive tone. Josh Friedes in Equality Washington, even though he had over a month to get his messaging up, chose to lash out against our efforts after we launched, choosing to use the word “violence” in one of his first press calls. I had warned Friedes that KTN would be doing this in Washington state one month before we did, and at that time he only said that we would “have to play good cop bad cop” and did not ask us to not do it. Later in a subsequent phone call Friedes asked KnowThyNeighbor to consider giving him the databases that we would be working on which we would provide to the public in a searchable tool. For what purposes Equality Washington and Friedes wanted this raw data of names I cannot guess, however, as the ballot measure is proving to be in a very close vote count, I might suggest using our database to get an accurate count of fraud and deception on the part of the signature collectors. I need to emphasize this once again, the fear mongering and negativity surrounding the name posting in Washington was and still is coming directly from Friedes efforts.

And one additional comment. William Galvin, the Secretary of State of Massachusetts said directly about KnowThyNeighbor’s strategy back in 2005, and I quote accurately, “What they are doing is perfectly legal AND the American way.” Galvin’s chief legal council told KTN, “that you are the opposition to a proposed ballot initiative, ‘it is your job’ to do this” (meaning my posting of the names online in a searchable format. When Josh Friedes was part of the coalition in Massachusetts that was known as MassEquality, he opposed name postings, yet the chief architect for our lobbying strategy at the Massachusetts Gay and Lesbian Political Caucus was for it AS WAS the Massachusetts branch of the ACLU.
I cannot believe that Washington state is that much different. And I certainly do not think that LGBT people in Washington cannot be trusted to stay within the law when exposed to public information.

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