June 24, 2010 | by Chris Johnson
High court rules against Wash. anti-gay activists

The U.S. Supreme Court on Thursday ruled against those seeking to keep secret the names of people who last year signed a petition to put an anti-gay referendum on the Washington State ballot.

In the 8-1 decision, the court determined in the case of Doe v. Reed that public disclosure of referendum petitions doesn’t — as a general rule — violate the First Amendment rights of signers.

But the decision left room for anti-gay activists to succeed at a lower court on the more focused question of whether making public the signatures for Referendum 71 specifically runs contrary to the U.S. Constitution.

Writing the majority opinion for the Supreme Court was Chief Justice John Roberts. The sole dissenting voice in ruling came from Associate Justice Clarence Thomas.

The initiative in question, Referendum 71, came before Washington State residents in 2009 and threatened to abrogate the expansion of the state’s domestic partner registry. But 53 percent of the electorate voted in favor of upholding the law, keeping the registry in place.

Concurrent with the campaign against the law, those who put the anti-gay initiative on the ballot — led by Protect Marriage Washington — challenged Washington State’s Public Records Act, which requires public disclosure of the names of petition signers who put referenda on the ballot.

The U.S. District Court of the Western District of Washington issued a preliminary injunction blocking the publication of signatures, and the issue made its way to the Supreme Court.

Plaintiffs argued the law could put those who signed the petition in danger after their names became public. In defense of the statute, Washington State argued disclosure contributes to electoral integrity of the ballot process and allows the public to double-check in case a mistake is made.

Roberts, who wrote the majority opinion of the Supreme Court, affirms the arguments that public disclosure promotes electoral integrity and concludes the disclosure law enables the public to find potential mistakes or instances of forgery.

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures,” Roberts writes. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

Roberts also rejects the assertion from plaintiffs that the court should overturn the disclosure law on the basis that disclosure of the names who signed the Referendum 71 petition would place these signers in danger.

The chief justice says the question before the court isn’t “whether PRA disclosure violates the First Amendment with respect to those who signed the R–71 petition,” but whether this disclosure “in general violates the First Amendment rights of those who sign referendum petitions.”

“The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R–71 petition, or on similarly controversial ones,” Roberts writes.

Roberts says the court must reject this broad challenge to all disclosure laws, but says this ruling doesn’t necessarily “foreclose a litigant’s success” in a narrower challenge before the district court.

The chief justice recalls how the court previously determined withholding names may be appropriate in some instances with “reasonable probability” that individuals would be harassed.

In a statement, Anne Levinson, chair of Washington Families Standing Together, which fought to maintain the state’s domestic partnership law, praised the high court’s decision.

She said the Supreme Court made clear that public disclosure laws ensure “measures are not put on the ballot by fraudulent means or mistake.”

“Nowhere is the integrity and transparency of elections more important than where the ballot box is being used in an attempt to take away fundamental rights,” she said. “Nowhere is it more important for the public to know that attempts to affect the lives of their fellow citizens by promoting ballot measures are free from fraud and error.”

But Larry Stickney, president of the Washington Values Alliance, said he’s “optimistic” anti-gay activists would be able to keep the petition names secret following action from the district court.

“Likely we’re going to be back in district court and we’ll be able to bring out some of the harassment and intimidation efforts that were made against Protect Marriage Washington,” he said. “We’re happy that that effort will carry on.”

Levinson dismissed the idea that those working on the campaign to overturn the domestic partner registry faced harassment and said there’s “absolutely no evidence of harassment” of signers.

“What the petitioners cite to by way of threats or other harassment, they talk about their campaign manager of other leadership in their campaign,” she said. “Those are the folks like me who were debating on TV or radio or leading a campaign effort, so that’s irrelevent to making any case about petition signers.”

Jon Davidson, legal director for Lambda Legal, said he doesn’t think plaintiffs have a shot keeping the names of petitions signers under wraps in light of the “reasonable probability” standard the Supreme Court established.

“I think they are very unlikely to have any success because the standard that the Supreme Court imposed here is — in a particular case — you can only prevent disclosure if you can show a reasonable probability that disclosure will subject to threats, harassment or reprisal,” he said. “So not the possibility — not that it could happen — but a reasonable probability that it will happen.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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