In 2009, Protect Marriage Washington attempted a voter repeal of Washington’s Domestic Partnership Expansion Law of 2009 via Referendum 71.  By a 53% margin Washington voted to keep the comprehensive domestic partnership law, the first state in the nation to affirm a same-sex relationship recognition law at the polls.

Once the Referendum 71 petitions were submitted to the Secretary of State for checking, they became public documents as per Washington’s Public Records Act.  Protect Marriage Washington argues that this is an unconstitutional breach of petition signers’ privacy.  The question is now before the U.S. Supreme Court in PMW’s case Doe v. Reed.

At last week’s Doe hearing Justice Ginsberg very neatly turned PMW’s privacy argument on its head, and PMW attorney James Bopp was forced to admit that petition sponsors like PMW emperil signers’ privacy themselves by selling or trading signers’ names and addresses (links added):

JUSTICE GINSBURG: May I — may I ask you one — something that was not in your brief, but was in the secretary’s brief. Is this list available to Project Marriage? And specifically on page 34 of secretary Reed’s brief, the statement is made. The sponsoring organizations sometimes sell or trade these lists. They use them for fundraising purposes. So that would be the end of a person’s privacy, at least on one side. Is that true, that the initiative sponsor uses these lists?

MR. BOPP: Yes.

JUSTICE GINSBURG: Yes?

MR. BOPP: Yes, this is an act of private association. The petition signers are associating with the referendum committee for purposes of placing -

JUSTICE GINSBURG: They don’t say: Now, I agree you can use my name for fundraising purposes. But that’s — it’s implicit, you say, in their signing the petition that the -

MR. BOPP: Well, what -

JUSTICE GINSBURG: — signature collector can sell the names, use them for its own fundraising purposes?

MR. BOPP: What is implicit is they are associating with this group for a purpose, and that is support for, in this case, Referendum 71. And so they use those names for valid purposes.

At the end there Mr. Bopp was trying say that PMW isn’t really infringing on R-71 signers’ privacy by selling signers’ names because the signers agree with PMW on the issue of the domestic partnership law.  Justice Ginsberg saw through that bull, and used PMW’s own brief to show that people sign petitions for all kinds of reasons besides agreement with the sponsor (read on after the flip).

JUSTICE GINSBURG: Let me stop you there, because I think your — your own brief, I think you said twice that you cannot tell anything about the signer’s belief from the mere signature. You said it could be support for — for the proposition or it could be just support for letting the people decide.

MR. BOPP: That it -

JUSTICE GINSBURG: Or it could even be, you say, that this solicitor is pesky, and in order to placate the solicitor, to get rid of the solicitor, we will just sign. So you — you have said that — that the signing itself is ambiguous. You don’t know what the reason is. It doesn’t necessarily mean that the person is a supporter of the proposition.

MR. BOPP: With all due respect, we do not say the third. We did say the first and the second. And — but either of those are political statements. The highlighted box at the top, you know, states – states that by signing R-71, we can reverse that decision, meaning the passage of a law, and protect marriage between a man and a woman.

JUSTICE GINSBURG: May I call your attention to page 20 of your reply brief? Because I don’t think that your response was correct. You say: Do petition signers support the repeal, simply indicate they would like public election to be held, or simply sign to avoid any further discussion with the petition circulator?

MR. BOPP: I acknowledge that we said that, Justice Ginsburg.

And then there remains to be answered this question which I raised almost a year ago:

Several organizations besides Gary Randall’s [Faith & Freedom Network] are involved in promoting the referendum and distributing the petitions. They include Washington Values Alliance and Protect Marriage Washington (both run by Larry Stickney); Washington Eagle Forum; the Focus on the Family affiliate Family Policy Institute of Washington; Constitution Party of Washington State; Youth With a Mission / USRenewal; Knights of Columbus; Christian Coalition; Antioch Bible Church.

Will petition signers’ data be shared among all these organizations?  Even if we could get a promise from Gary Randall that he won’t sell his copy of the list (he hasn’t been asked for that promise regarding this referendum, to my knowledge), he cannot guarantee that one or more of these other organizations won’t.  There are many fingers in this petition pie.  Which of them are sticky?

Speaking of sticky fingers, Washington’s “initiative king” Tim Eyman, the sometimes-collaborator of the backers of Referendum 71 has his own lawsuit in the works to keep all petitions secret.  Eyman has made a career out of filing initiative petitions and clearly profits from them.  As the dominant purveyor of initiatives and referenda in Washington, he appears to have a vested interest in blocking public access to the goldmine of names, and has had public quarrels with past collaborators (including Gary Randall) over the ownership of these lucrative lists.

Below is the part of Secretary Reed’s brief that Justice Ginsburg referred to in the first text box up top.  I’ll give Secretary Reed the last word here, since I think he’s completely on target.  I’ve reformatted it for readability and added links.

Picture of the first signature line from a Referendum 71 petition.

The names and addresses on petitions can be sold or traded to other organizations or individuals. See, e.g., John Hancocks In Tug of War

The “president of Faith & Freedom [Gary Randall], said Thursday the religious network had hoped to develop a mailing list for future efforts to overturn the law. If a new referendum or initiative campaign is launched, they’d probably mail a copy of that petition to the people who signed Referendum 65, asking them to sign the new proposal and have their friends sign it, too.”

The names and addresses on petitions may also be used for fund raising. Indeed, in discussing fund raising, the manual for initiatives explains that: “Your petitioners are another gold mine.”

In this case, it appears that the sponsor of Referendum 71, Protect Marriage Washington, did not gather the voters’ signatures for the sole purpose of qualifying Referendum 71 for the ballot. The Referendum 71 petitions also had a space for the signers to provide their email addresses, even though state law does not require voters to provide their email addresses, and the Secretary does not use email addresses to verify voters’ signatures. Protect Marriage Washington converted from a single measure political committee to an ongoing political committee after the election in November 2009. … State law provides no statutory prohibition on use of any information Protect Marriage Washington gathered on the initiative petitions while it was a single issue committee. It would not be surprising if the names, addresses, and email addresses on the petitions are now being used to solicit donations for the political committee.

Yes, the request for email addresses does sort of make it obvious that PMW was planning this petition to do double-duty as a legislative lever as well as a future campaign and/or fundraising tool.  Signer privacy?  What privacy?  Protect Marriage Washington don’t respect no signers’ stinkin’ privacy.

Related:

* Concerned Women for America in damage control mode after Doe v. Reed hearing

* Justice Scalia: “Democracy requires a certain amount of civic courage.”

* Protect Marriage Washington impugns WA Secretary of State on eve of SCOTUS hearing

* Conservatives and progressives unite to defend Open Government

* I, Citizen Legislator

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

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

* What Will Gary Randall Do With Your Signature?

Cross-posted at Washblog.