Utah's Lt. Governor's office is being forced to keep public documents private.
In response to an open records request by the Daily Herald, Lt. Gov. Greg Bell's office stated that a federal judge had ordered that the list of people who signed a petition dealing with a ballot initiative from 2010 be withheld from the public.
"Previous requests for signers of ballot propositions have been granted; however, our office currently has no choice but to deny your request for the complete list of signers until the preliminary injunction is vacated," wrote Mark Thomas, director of elections for Bell's office, in his letter denying the records request.
The petition was submitted to the Lt. Governor's office by Utahns for Ethical Government in an effort to allow Utahns to vote on an initiative that would create an ethics commission for legislators and that also lays out a code of conduct for lawmakers. Utahns for Ethical Government is suing the state to get on the ballot this year, and the state supreme court heard arguments in the case last week. The group failed to gain enough signatures by the deadline to get the initiative placed on the ballot in 2010. It continued collecting signatures in an effort to get it on the ballot in 2012, claiming it had a year from the date it started collecting signatures to meet the threshold. But the state has argued that the group can't carry over signatures and needed to start over.
Because of the preliminary injunction, though, members of the public are not able to scrutinize the petition list to see if their names have been included, even though public scrutiny is usually allowed.
"I don't know if my name is on the list or not, but I'd like to check," Sen. Todd Weiler, R-Woods Cross, said.
Weiler himself has been interested in running ethics legislation; as a leader in the Republican Party he led efforts to promote ethics proposals prior to his service in the Legislature. He thinks the possibility exists that someone assumed he would be supportive of the initiative because of his interest in the topic and added his name to the list, but he cannot check to see if his name is included because the list is blocked.
In reality a number of names could be on the petition that don't belong there. According to Utahns for Ethical Government attorney David Irvine, the only verification done is that county clerks make sure the addresses, names and dates of birth on the petition relatively match the addresses, names and dates of birth that they have on the county voting rolls. This means someone could add a person's name to the petition and have it verified if they knew the necessary information -- most, or all, of which is available on Facebook -- without the other person knowing he signed the petition.
The U.S. Supreme Court ruled on a topic similar to this case in 2010. By a vote of 8-1, the high court ruled that people who sign petitions calling for votes on controversial subjects don't have an automatic right to shield their names. The case dealt with a Washington petition drive to force a vote on repealing a gay rights law in the state. Those leading up the petition drive wanted their names kept secret because they worried about intimidation. Previous reports have stated that leaders with Utahns for Ethical Government have wanted to keep the names blocked because of fear of political retaliation.
Following the 2010 ruling the Lt. Governor's office has attempted to have the list of names on the petition available to the public, but U.S. District Judge Clark Waddoups ruled in March 2011 that without "a legitimate governmental interest, the government has no justification for" releasing names of people who signed the petition and burdening First Amendment rights.
The state had argued that government interest in transparency and accountability would be served by releasing the names because people could determine if their names had been fraudulently signed to the petition. However, Waddoups decided that government interest in preventing identity theft is not a government interest covered in the U.S. Supreme Court ruling.
He also noted that the lieutenant governor had ordered county clerks not to certify the petition signatures until the dispute over reusing signatures collected for the 2010 ballot is resolved, so "neither combating fraud nor detecting invalid signatures are germane at this time. The government can hardly expect help from the public in a task it is not currently undertaking."