On Friday, the justices agreed to enter the divisive dispute and decide whether the names of petition signers must be released under a state public records law or instead must be kept private to protect the signers’ right to engage in political speech and political association.
Lawyers for the petition signers say their clients are likely to be subjected to “threats, harassment, and reprisals” if their names are made public.
In September, a federal judge issued an injunction blocking release of the signers’ names and addresses. A month later, a panel of the Ninth US Circuit Court of Appeals lifted the injunction and ruled that the names could be made public. A few days later, the US Supreme Court restored the injunction, pending a decision on whether to hear the case.
A related issue in Proposition 8 trial
The decision to hear the Washington State case comes two days after the high court decided 5-to-4 to block broadcasts of a San Francisco trial challenging the constitutionality of a California referendum that banned gay marriage. The trial judge had approved a plan to permit real-time broadcasts to five federal courthouses around the country. In blocking the plan, the majority justices noted concerns that trial witnesses might be subject to harassment and threats because of their open-court testimony in opposition to gay marriage.
The Washington State case revolves around an unsuccessful effort to repeal a 2009 domestic partnership law that provides same-sex couples the same level of legal protection as married couples, but without using the term marriage.
Opponents gathered 138,500 signatures to place Referendum 71 on the ballot last November. Voters upheld the domestic partnership law 53 percent to 47 percent. But the dispute did not end there.
Several organizations are seeking public release of the Referendum 71 petitions. They include KnowThyNeighbor.org and WhoSigned.org, which have said they intend to post the names of petition supporters on searchable websites to encourage contacts between the signers and gay rights advocates.
A June press release by both organizations denied any intent to intimidate. Instead, a co-director said the Web-based lists are aimed at facilitating conversations between petition signers and friends, relatives, and neighbors. The release says that “these conversations can be uncomfortable for both parties, but that they are desperately needed to break down stereotypes.”
Conversations versus confrontations
James Bopp, lawyer for Protect Marriage Washington, which backed the referendum, disagreed. “These are not ‘conversations’ at all, but confrontations,” he said in his brief.
Mr. Bopp adds that the campaign manager for Protect Marriage Washington received an e-mail death threat and an e-mail threat against family members. The threats were reported to the police, and family members began sleeping in an interior living room for safety, Bopp wrote.
In his brief urging the Supreme Court not to take up the case, Washington Secretary of State Sam Reed acknowledges that Bopp’s clients have expressed concern about threats and harassment. But his brief dismisses the concerns in a single sentence: “The claim that the petitions should not be released because of the possibility of harassment and threats is not before the court.”
The state’s brief says that signing a referendum is a public act, and that any personal information recorded on a petition is therefore part of a public document.
Bopp wrote that, historically, personal information on referendum petitions in Washington State had not been considered public information, but that the current secretary of state views it as public.
“At stake are the speech and association rights of more than 138,000 citizens that signed the R-71 petition, as well as countless other signatories to referendum and initiative petitions in Washington and throughout the nation,” Bopp wrote. “The potential chilling effect on the freedoms of speech and association resulting from the Ninth Circuit’s opinion and analysis are substantial and deserve the attention of this court.”
Twenty-seven states empower residents to engage in an initiative or referendum process.
The current trial in San Francisco is aimed at overturning a ban on gay marriage in California imposed via a referendum. The vote overturned a California Supreme Court decision establishing a right to gay marriage under the California constitution. The lawsuit challenges the ban as a violation of due process and equal protection under the US Constitution.
A matter of government-compelled speech?
In the Washington State case, the question is whether the public release of personal information recorded on a referendum petition amounts to a form of government-compelled speech. In effect, the released information could reveal an individual’s position on a controversial political issue against the voter’s wishes.
The government requires identifying information on a ballot petition to verify the identity of the prospective voter, not to identify a prospective voter’s political views.
Washington State officials say that once personal information is provided to the state on a referendum petition and the information is verified, it must be available for public release.
The case is John Doe v. Sam Reed.
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