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Thursday, June 24, 2010

R-71 Case: Supreme Court Rules Petitions Are Public

Posted by on Thu, Jun 24, 2010 at 7:51 AM

The U.S. Supreme Court has just ruled in an eight-to-one opinion that governments can disclose the personal information on initiative and referenda petitions, generally speaking, without violating the First Amendment. But whether the petitions for Washington state's Referendum 71, circulated last year to repeal rights for gay couples, will be made public is left up in the air.

Writing for the majority, Chief Justice John Roberts says, "The issue at this stage of the case is not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so. We conclude that such disclosure does not as a general matter violate the First Amendment."

The full opinion is here.

However, Protect Marriage Washington, sponsors of the measure, had contended that petition signers of R-71 were at risk of personal harm if their names and addresses were released, citing threats made to people involved in California's Prop 8. By signing the petition, voters were engaging in private political speech—like voting—and the state had no particular benefit in releasing the names and addresses of people who signed, the group argued.

While saying petitions aren't inherently private, the court maintains that specific petitions can be reviewed to determine if the information on those sheets may be shielded from public disclosure. In this case, the court appears to kick this case (Doe v. Reed) back down to a federal district court for review. Roberts continues: "We leave it to the lower courts to consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition."

Some of the saltiest words from the bench come from Justice Antonin Scalia, who was particularly testy during the oral arguments, and dismisses the anti-gay group's fundamental argument outright in his concurring opinion: "I doubt whether signing a petition that has the effect of suspending a law fits within 'the freedom of speech' at all." Scalia goes on to detail the history of public voting in the US, which did not switch to a secret ballot until 1880. And even then, he writes, "new paper ballots did not make voting anonymous."

Justice Thomas was the only dissenting vote on the bench.

The case arose because group called requested the names and addresses of R-71 signers to post online—in part so people could confront anti-gay petition signers and so the public could double-check that signatures had been legally verified by the state.

But it looks like anti-gay forces will have a hard time—in any court—arguing that R-71 petitions should be private.

"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," writes Roberts. But speaking of other controversial initiatives, he continues, "Plaintiffs have offered little in response. They have provided us scant evidence or argument beyond the burdens they assert disclosure would impose on R—71 petition signers or the signers of other similarly controversial petitions. Indeed, what little plaintiffs do offer with respect to typical petitions in Washington hurts, not helps: Several other petitions in the State 'have been subject to release in recent years,' plaintiffs tell us... but apparently that release has come without incident."

As for threats, Scalia adds, "Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation... Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave."

After the jump. Statements from Washington Secretary of State Sam Reed (the defendant), AG Rob McKenna (who argued the case) and Washington Families Standing Together (which ran the campaign to uphold gay rights and a respondent in the case)

Says Sam Reed:

Even as we welcome today’s ruling, I understand privacy concerns in the Internet era and the desire to participate in our initiative and referendum process without fear of harassment or retaliation. I will continue to speak out for civility in our citizenship and will firmly insist that petition signatures not be used in a threatening or inappropriate way. We have a long history of debating and voting on some very difficult and personal issues in a civil way, and I believe we will continue to do so. We do not want to ever chill voters’ right to take part in what we value as direct democracy.

Says AG Rob McKenna:

This is a good day for transparency and accountability in elections—not just in Washington but across our country. We’re pleased the Supreme Court ruled in favor of disclosure, upholding the public’s right to double-check the work of signature gatherers and government — and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret.

Says Washington Families Standing Together:

The Court has made clear today that public disclosure requirements are an important means of making sure measures are not put on the ballot by fraudulent means or mistake.

“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. Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot. In light of the foregoing, we reject plaintiffs’ argument and conclude that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.”

This 8- 1 ruling by the highest court in the land is a significant defeat for those who have sought to enshrine discrimination into law at the ballot box. 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. 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. Perhaps no other group has witnessed its rights put up for public vote more than LGBT Americans. Social conservatives have used ballot measures in state after state, over more than 30 years, to keep LGBT Americans from being able to adopt children, to marry and even to be protected from discrimination in housing and employment.

This is the third loss for these groups in our state over the past year as they tried to repeal legislation ensuring that all families are treated equally under Washington State law. First the State PDC said no when these same groups tried to hide their donors. Then voters approved Referendum 71, retaining the law, by more than 53%. Now the U.S. Supreme Court has ruled against the proponents’ attempt to undermine disclosure laws.

With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure, as Justice Stevens said in his concurring opinion,

“Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures.”

The Supreme Court has in the past allowed exemptions to public disclosure where there's a clear minority party that has suffered both official and societal retaliation by the majority such that disclosure presents a very real threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.

In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet, yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”

WAFST applauds today’s decision and thanks all those who filed briefs and supported our collective efforts as we fought over the last year to protect the rights of all Washingtonians.


Comments (26) RSS

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I am against any form of secret ballot. If a person cannot vote openly, then there is no real freedom. And also, a person cannot hide behind the voting system. He must represent his vote, either in an election, primary or referendum initiative.
Posted by Supreme Ruler Of The Universe http://_ on June 24, 2010 at 8:03 AM · Report this
Jubilation T. Cornball 2
This is momentous not only because of the decision, but because Brother Clarence diverged from Brother Antonin.

Clarence Thomas is an irredeemable troglodyte.
Posted by Jubilation T. Cornball on June 24, 2010 at 8:07 AM · Report this
Joe Szilagyi 3
So... good news?
Posted by Joe Szilagyi on June 24, 2010 at 8:11 AM · Report this
Don't be shy to call in Fisko as well, not that your analysis isn't reliable I"m sure.
Posted by gloomy gus on June 24, 2010 at 8:16 AM · Report this
Vince 5
Another loss for Washington's mean spirited Christian bullies. Hoorah!
Posted by Vince on June 24, 2010 at 8:19 AM · Report this
venomlash 6
Cue the massive BAWWWWW from Loveschild (if (s)he's still around), Alleged, and the Period Hivemind in 3...2...1...
Posted by venomlash on June 24, 2010 at 8:27 AM · Report this
Sir Vic 7
@1 Unfortunately, there are many women who would/could not vote their conscience without a secret ballot. Their abusive & domineering husbands/fathers would cast their vote for them. And it's not just women. We've still got some work to do on the freedom front.
However, I agree with the principle of owning up to your participation in governance.

And another instance of Clarence Thomas being the worst SCOTUS member in recent memory. What a waste of a robe.
Posted by Sir Vic on June 24, 2010 at 8:40 AM · Report this
Baconcat 8
Just popped in to go "Woo!"
Posted by Baconcat on June 24, 2010 at 8:42 AM · Report this
Cato the Younger Younger 9
I will look forward to seeing if any of the people I work with signed that petition. And I certainly am looking forward to seeing if my boss signed it....
Posted by Cato the Younger Younger on June 24, 2010 at 8:44 AM · Report this
Joe Szilagyi 10
Dom, once the R-71 lists come out, the media will need to really and seriously dig into ANY reports of "attacks" or "threats" on bigots over this.

I'll bet anyone $10 we see at least one false flag anti-gay operation come out of this.
Posted by Joe Szilagyi on June 24, 2010 at 8:45 AM · Report this
michaelp 11
The best part is the "legal argument" in the dissent. It's not so much a legal argument as it is a "I think it should be this way" argument.

Overall, good news, I think. It remands the issue back to the lower courts, and, generally speaking, there is a good chance that, with the separate concurring opinions, the AG can make a solid argument as to why Doe v. Reed should apply to R-71
Posted by michaelp on June 24, 2010 at 8:50 AM · Report this
gttim 12
Funny, all the people on the right were screaming about how free speech wasn't with consequences when the Dixie Chicks used theirs. Suddenly they are worried about that?
Posted by gttim on June 24, 2010 at 9:14 AM · Report this
@2: 10 points for using "irredeemable troglodyte" -- you made my morning. :)

I'm glad to see Scalia taking the stance he's taken here. Now and again it's refreshing to be on the right side of history, huh Ant?
Posted by pheeeew!crack!boom! on June 24, 2010 at 9:45 AM · Report this
Frau Blucher 14
Excellent! I'm stoked.
Posted by Frau Blucher on June 24, 2010 at 9:50 AM · Report this
Anne in MA 15
@ 1 - Oh yeah, because there's no difference between voting and actually legislating. None at all. That's why Congressional votes always take place in secret. Not like we have voting records for legislation, or, god forbid, television cameras in Congressional chambers.

Either you don't see the difference between this ruling and the secret ballots in public elections, in which case you clearly haven't thought this through, or you do see the difference but are choosing to ignore it for the sake of rhetorical posturing, in which case you're being disingenuous.

This wasn't even a close case - it came down 8-1, with Roberts writing the opinion. This didn't break down along left-right lines. And, honestly, this holding was probably a foregone conclusion by the time they even made it to oral arguments.
Posted by Anne in MA on June 24, 2010 at 10:04 AM · Report this
john t 16
They keep expressing their persecution fantasies about "retribution". But so far, I've never heard of any actual instances of a gay person attacking an anti-gay activist (beyond nasty screeds on blogs or threats of boycotts). Surely they would trot out an anecdote or two, if they had them, to support the violent retribution argument? Why do they get away with perpetuating this ubsubstantiated fearmongering bullshit?

Let's place bets on how soon we see one of them carve a backwards "Q" on their own cheek.
Posted by john t on June 24, 2010 at 10:26 AM · Report this
Will in Seattle 17
I will be officially requesting PDFs and posting them next to the Fremont Bridge once they become available.

And personally will make sure those in my neighborhood are actual real people, given time available.

We can't function as a society with secrecy in our public petitions, or our laws.
Posted by Will in Seattle on June 24, 2010 at 10:46 AM · Report this
Sir Vic 18
@17 I would be amazed if you found a lot of people in the Ballard-Fremont-Wallingford region who signed this. If they owned a business in that area, it will be closed shortly. A couple days of a half-dozen sign toters outside the doors will be all it would take. No need for any sort of intimidation, just yank the dollar out of their hands.
Posted by Sir Vic on June 24, 2010 at 10:59 AM · Report this

Unfortunately, if that were to happen, these folks sound like the type who would point to exactly this sort of - completely legal - activity and scream, "AHA! We TOLD you this would happen! WR BEEIN PERSEKUTED!!!"

Face it, you just can't win when you're dealing with teh crazies...
Posted by COMTE on June 24, 2010 at 11:04 AM · Report this
Phoebe on NE 79th 20
I feel sorry for the folks that happen to have the same names as the ones that signed.
Posted by Phoebe on NE 79th on June 24, 2010 at 11:24 AM · Report this
Joe Szilagyi 21

Bob Jones, owner of Jones Pizza in Seattle, signed R-71 to endorse it. His name gets disclosed and tied to his ownership of Jones Pizza. Over the next year, the public decides to not order pizza there anymore. Bob's sales drop 40%.

Exactly how a free market capitalist society with freedom of speech and religion should operate, if you ask me. Live by the sword; die by the sword.
Posted by Joe Szilagyi on June 24, 2010 at 11:25 AM · Report this

I agree, but I'll also bet you dollars to donut holes ole' "Bigot Bob" himself would point to the significant loss of business as incontrovertible "proof" that he's the victim of hate-crime level intimidation by teh Gays. After all, if'n his name hadn't been published, nobody would have known he signed the petition, and therefore they wouldn't have taken their trade elsewhere because they objected to his bigotry, which is why he didn't want his name published in the first place.

IME, if there's one thing these people are really good at, it's creating arguments out of completely circular logic.
Posted by COMTE on June 24, 2010 at 12:51 PM · Report this
Joe Szilagyi 24
@22 hopefully someone with the common sense and skill to do so behind multiple layers of anonimizers for the inevitable lawsuit that will hit.
Posted by Joe Szilagyi on June 24, 2010 at 1:21 PM · Report this
Frau Blucher 25
Can we now send Protect Marriage the bill for wasting tax payer monies??
Posted by Frau Blucher on June 24, 2010 at 2:45 PM · Report this
Will in Seattle 26
Good point @21.

That said, we should make sure it's the correct Bob Jones and that they didn't actually forge the signature. The crazies who pushed R-71 are convinced God said it's ok to Lie, Cheat, Steal, and Murder in His Name, so I wouldn't put that past them.
Posted by Will in Seattle on June 24, 2010 at 5:20 PM · Report this
venomlash 27
@24: Multiple layers of anonymizers you say? Possibly even SEVEN PROXIES???…
Posted by venomlash on June 24, 2010 at 9:18 PM · Report this

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