By the adoption of the initiative and referendum amendments the people of this state became a part of the legislative branch of the state government.  – Washington State Supreme Court Judge Mackintosh, State ex rel. Mullen v. Howell, concurring opinion

I don’t have a seat in the state legislature, but as a voter in one of the 24 states that provide for citizen-initiated referenda or initiatives, I do have the power to write, move and co-sponsor legislation.  To the degree I choose to participate in these activities, I am a Citizen Legislator.

Why does that matter?  That is one of the issues before the United States Supreme Court in Doe v. Reed, a case that arose from the Referendum 71 campaign in Washington state.  The case has drawn a great deal of national attention since it is a challenge to both the rules by which every state regulates its electoral processes and to the Public Records Acts of states and municipalities across the country.

As Anne Levinson, Chair of Washington Families Standing Together, the Approve 71 campaign said

Protect Marriage Washington,  National Organization for Marriage and their affiliates are asking the high court to rule that Public Records Acts are unconstitutional because they treat initiative and referenda petitions as public records.   This challenge goes way beyond Referendum 71. And it goes way beyond lgbt issues.  It is part of a systemic effort by these right-wing groups to shroud their activities and sources of money. These groups have not only been involved in anti-gay ballot measures in California, Iowa, Maine, Washington and other states, they put hundreds of thousands of dollars into U.S. Senate and Congressional races. They are using this case to ask the Court to issue a sweeping ruling that would undermine campaign regulations and open government, not just in Washington state, but in every state in the Union.

First they argue that signing a petition is a private act.  Clearly it is not and never has been.  Petitions are circulated and signed in public and submitted to the government for public certification. Then they argue that signing petitions is an act of speech, which they say outweighs the need for open and transparent government and the role of the states in ensuring elections are fair and free from fraud. But signing petitions is not speech.  The speech happens in the give and take in deciding to sign or indeed in all the discourse during campaigns.  Signing a petition is a citizen standing in the shoes of a legislator. Signing a petition for a referendum is ordering the state to stop the law from taking effect and directing the state to put the law on the ballot for a public vote.  The only way that can happen is for the legislative body to do it directly or for citizens to do it in lieu of the legislative body by collecting sufficient signatures.

City of Olympia, WA‘s website illustrates the public nature of petitions

Since 1913, Washington State law has mandated that referendum petitions print the following language above the signature lines (underlining mine):

To the Honorable ___, Secretary of State of the State of Washington

We, the undersigned citizens and legal voters of the State of Washington, respectfully order and direct that Referendum Measure No. __ … shall be referred to the people of the state for their approval or rejection at the regular election.

If enough valid signatures are collected on a referendum petition to qualify it for the ballot, enactment of the law challenged by the referendum is suspended pending the result of the election.  Thus, signing a referendum petition is a significant legislative act that 1) directs the Secretary of State to put a measure on the ballot, and 2) suspends a law that was duly passed by the legislature.

Although we don’t allow our elected officials to legislate in secret, Protect Marriage Washington, the anti-LGBT sponsor of Referendum 71, wants the identities of Citizen Legislators kept secret.  They’ve asked the United States Supreme Court to rule as unconstitutional Washington’s Public Records Act (PRA) to the extent that it mandates that government documents like submitted referendum petitions are public records.  Their lawsuit is part of a national campaign to rid the country of open government and campaign sunshine laws.  Nobody has the right to legislate in secret.  Secrecy breeds fraud (see note below), intimidation and mistrust in government.  Legislators don’t wear hoods.  The Klan does.  This is what Protect Marriage Washington’s case Doe v. Reed is all about.

Last week, the defenders of open government and fair campaign practices filed their merits briefs with the US Supreme Court: Washington Secretary of State Sam Reed, Washington Families Standing Together (the Approve 71 campaign) and Washington Coalition for Open Government.  These documents are very much worth your time.  They reveal quite clearly that Protect Marriage Washington has no legal leg to stand on.  This would explain why Protect Marriage Washington keeps selling a different case to the public and the Court than is actually before the Court.  More on that after the fold.

Note: After a month-long count of every signature, Secretary of State Reed determined that of almost 138,00 signatures Protect Marriage Washington submitted only 121,777 were valid signatures, just 1,200 over the minimum needed.  Observers of the certification process believe that more than that number of signatures may have been erroneously counted as valid by the Secretary of State.  However, citizens were barred from their legal right to examine the petitions and make an independent determination because a federal district judge granted Protect Marriage Washington the temporary restraining order that became the first step leading us to the Supreme Court.A few days after Protect Marriage Washington submitted their Referendum 71 petitions to the Secretary of State for validation, they filed Doe v. Reed in Federal District Court.  What they were after initially was a Temporary Restraining Order (TRO) to prevent the public from having access to the Referendum 71 petitions.  Their complaint objected to the public disclosure of petitions on two counts:

Count I – They asserted that releasing completed signature petitions for any referendum would violate the signers’ First Amendment rights.

Count II – They asserted that releasing Referendum 71 petitions under the PRA would violate the petition signers’ First Amendment right of association because disclosure would subject them to harassment.  

The district court granted Protect Marriage Washington the TRO, which barred disclosure of referendum petitions.  While this TRO prevented citizens from independently examining the petitions for fraud, etc., it may have been a Pyrrhic victory for Protect Marriage Washington because of the way the judge made the decision.

The district court did not take testimony, and the only factual record before the court was three declarations submitted by John Does, documents attached to the complaint, and several attorney declarations attaching news reports. There had been no opportunity for discovery, and not a single witness appeared at the hearing.

On this limited record, the district court concluded that petitioners were entitled to relief under Count I of the Complaint and explicitly declined to reach the question-presented only by Count II-whether the alleged threats of harassment justified exempting the petitions from disclosure.

Because the district court judge didn’t examine actual evidence and didn’t rule on Count II, Protect Marriage Washington’s allegations that their petition signers will face harassment if their names become public have not been examined or validated by the court in any way, and Count II is off the table for consideration by the higher courts, including the Supreme Court.

This means that Protect Marriage Washington’s case rests only on their ability to successfully argue Count I.  Although signing a referendum petition may be speech in part, as mentioned above the fold it is also a legislative act.  Thus it is not pure speech as Protect Marriage Washington contends.

The [9th Circuit] court of appeals reversed [the district court], holding that the act of signing a petition was not anonymous and was a mixture of speech and conduct, such that intermediate scrutiny applied. The court of appeals held that the Public Records Act as applied to the petition sheets served important interests of open government, public disclosure, and protecting against fraud.

The court of appeals did not consider Petitioners’ as-applied [Count II] challenge to the disclosure of the Referendum 71 petitions, because the trial court did not address that second claim.  Nevertheless, petitioners devote the majority of their merits brief to matters relevant only to an as-applied [Count II] challenge. Rather than focus on the facial challenge that is before the Court, petitioners discuss the “harm” and “intimidation” that allegedly arose during the Referendum 71 campaign and, even more remotely, California’s Proposition 8, which was an initiative dealing with marriage rights for same-sex couples. To the extent that such a discussion is material, its relevance is limited to Count II, which petitioners concede is not before the Court.

So the court of appeals found that the district court and Protect Marriage Washington were wrong on Count I, and Count II is off the table.  Yet Protect Marriage Washington loaded its Supreme Court merits brief with useless information related to Count II.  What gives?  When you build a case not on solid legal analysis but on unsubstantiated allegations, perhaps all you can do is keep flogging the unsubstantiated allegations and hope to win sympathy among those harboring unexamined bias against gays and lesbians.

Gary Buseck, Legal Director of Gay & Lesbian Advocates & Defenders said

There is no credible evidence that individuals who signed petitions to put Referendum 71 on the ballot were subjected to any harassment.  Petitioners have taken a handful of isolated incidents – serious if true but also endemic to hard-fought political campaigns – and attempted to magnify them into a coordinated campaign that simply does not exist by joining them with any array of trivial grievances and feelings of discomfort when lesbians and gay men responded to the ballot attack with constitutionally protected speech.

As we wait for the April 28th Supreme Court hearing, it’s worth remembering just who is really under systematic attack here.  Some of the nation’s leading LGBT organizations have have supported WAFST’s case by filing an amicus brief showing in detail that “it is the lesbian and gay community, not its opponents, that continues to suffer serious violence, harassment, and discrimination, along with a 30-year barrage of ballot petitions aimed at stripping LGBT people and other minority groups of basic protections.”

Summary of Argument

When subjecting a minority group to political attack, a common tactic is to claim that the minority is itself the aggressor from whom protection is required. Petitioners and certain like-minded groups are engaged in precisely such an effort by here and elsewhere accusing the lesbian and gay community and its supporters of subjecting opponents of legal protections for same-sex couples to a systematic and coordinated “intimidation campaign.”

This tale is false and unsupported by the record.

Because of this case’s procedural posture, as well as the procedural posture in other cases where this narrative has been presented, the Court has not been provided with a complete and accurate presentation of facts so much as a series of one-sided accusations and hearsay never subjected to adversarial testing.  Petitioners and their amici rush to characterize a handful of alleged incidents during the Proposition 8and Referendum 71 campaigns as representing a systematic victimization crusade. A closer look reveals but a handful of allegations which, although serious if true, are of the sort endemic to many hard-fought political contests. A closer look also shows that Petitioners’ and their amici’s hyperbolic story of a systematic campaign of “intimidation” and “reprisal” marries these incidents to a pool of trivial grievances and mere discomfort at the zealous but constitutionally protected speech used by some individuals to respond to the attack leveled at lesbians and gay men by the discriminatory initiatives. Moreover, not a single allegation on which Petitioners rely involves the signing of a petition. In effect, Petitioners and their supporters are trying to demonize and silence vigorous advocacy in support of equal rights that they disagree with – not protect their own right to speech.

Lesbian and gay individuals continue to face overwhelming violence, harassment, and discrimination. The petition process is a favored tool for subjecting such individuals to further

discrimination – a tool against which lesbian and gay people, given their small numbers and disadvantages in the ballot initiative process, have few meaningful defenses. Petitioners seek, through their feint of  victimization, to take away one of the few defenses that lesbian and gay individuals have to defend against hostile initiatives: the use of public records to stop the fraudulent qualification of such measures in the first place, and to lobby, through personal advocacy, the people who legislate using such measures. The Court should decline the invitation to scrap these protections based on a poorly-supported and largely fictitious tale that those who seek to deprive lesbian and gay Americans of rights are the  ones being victimized.


* Challenge to Washington’s Public Records Act to get hearing by USSC

* Gary Randall makes puzzling claims about the Doe v. Reed lawsuit

Cross-posted at Washblog.