Guest post by: Anne Levinson, Chair, Washington Families Standing Together
Today, the next chapter in a legal case that many thought was long since over will be argued in Federal District Court in Tacoma, Washington. The case, Doe v. Reed, stemmed from the 2009 Referendum 71 campaign in Washington State where a local group, Protect Marriage Washington (PMW), an affiliate of the anti-gay National Organization for Marriage (NOM), promoted a ballot measure to repeal the state’s recently enacted domestic partnership law. They were opposed in that effort by Washington Families Standing Together (WAFST), a progressive statewide alliance which I helped form and then chaired to stop the attempted repeal. On Election Day in November, 2009, 53.15% of voters approved retaining the domestic partnership law, making Washington the first state in the country to vote affirmatively in support of comprehensive relationship recognition for LGBT families.
What many may not be aware of is that from the moment PMW began collecting signatures to put the referendum on the ballot, they also began a well-choreographed effort to circumvent the State’s public disclosure laws, part of NOM’s multi-state strategy. They argued to the state public disclosure commission while their allies argued in federal district court that they should not be required to report who was contributing to their campaign and in what amounts. As they turned in their petition signatures to qualify for the ballot, they also filed suit in yet another courtroom seeking a temporary restraining order blocking the Secretary of State from releasing the referendum petitions pursuant to the State’s Public Records Act (PRA), as has been the routine practice of the State.
That was July 2009. The district court granted the TRO and scheduled the hearing for September, which meant that WAFST could not access the records we needed to challenge the signature certification. The petitions were needed to verify the anecdotal evidence of fraud and mistake voters had shared with WAFST, which if true, would have kept the measure from being certified for the ballot. The district court ruling made our challenge impossible. Instead, after many weeks of review by the Secretary of State in rooms packed with observers from both campaigns (picture tired election workers looking computer screens in an effort to match each signature), the election was certified for the ballot. We had less than 10 weeks to campaign against repeal. The case went up on appeal while the campaign was ongoing. The Ninth Circuit Federal Court of Appeals heard oral argument on October 14th and overturned the district court’s decision eight days later, less than two weeks before Election Day.
The Court of Appeals found that the State has two interests: (1) preserving the integrity of the election by promoting government transparency and accountability; and (2) providing Washington voters with information about who supports placing a referendum on the ballot. Both interests, the Court said, plainly qualify as important:
“A [s]tate indisputably has a compelling interest in preserving the integrity of the election process…In Washington, the PRA plays a key role in preserving the integrity of the referendum process by serving a government accountability and transparency function not sufficiently served by the statutory scheme governing the referendum process. Without the PRA[Public Records Act], the public is effectively deprived of the opportunity independently to examine whether the State properly determined that a referendum qualified, or did not qualify, for the general election.”
“Moreover, the PRA is necessary for citizens to make meaningful use of the state superior court challenge also provided by statute… The superior court procedure would be at best inefficient and at worst useless, if citizens have no rational basis on which to decide whether they are “dissatisfied” with the Secretary of State’s determination before filing a challenge – and they cannot gain that understanding without the right to inspect the petition sheets. That statute provides: Any citizen dissatisfied with the determination of the secretary of state that . . . [a] referendum petition contains or does not contain the requisite number of signatures of legal voters may, within five days after such determination, apply to the superior court of Thurston county for a citation requiring the secretary of state to submit the petition to said court for examination, and for a writ of mandate compelling the certification of the . . . petition, or for an injunction to prevent the certification thereof . . . .”
The other side appealed to the U.S. Supreme Court. The campaign continued. The Court granted certiorari and in an 8-1 decision, authored by Chief Justice Roberts the following June, the Court upheld the State’s disclosure laws as constitutional. Justice Roberts agreed that disclosing the names of signers can prevent fraud and promote open government, “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 wrote. “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”
Even Justice Antonin Scalia, one of the Court’s core conservative members, concluded in his concurrence that, “[r]equiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” “For my part,” Scalia wrote, “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.” Only Justice Clarence Thomas dissented.
So why, after more than 26 months, is this case still going on? PMW’s argument was that public scrutiny of their signatures would result in harassment and intimidation by those who support LGBT equality. The Supreme Court’s ruling had addressed the issue of disclosure laws for ballot measures in general, but did not address the specific allegations made about Referendum 71. The Court left the door open for a party to prove that in a specific election there was a reasonable probability that they would be subject to the same sorts of harm as had been suffered by the NAACP or the Socialist Workers Party in decades past, but the Court made it clear that the bar was high. As Justice Sonia Sotomayor noted in her concurring opinion, “ … courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.”
So PMW went back to federal district court where WAFST, the State and the Washington Coalition for Open Government continued to oppose their argument that the Referendum 71 petitions should be kept from the public. After months of proceedings, the judge decided in September, as we had argued, that there were simply no facts which warranted a trial and he could instead rule based on the law. WAFST’s position is that despite PMW’s repeated assertions that there was threatened harassment and intimidation which warrant anonymity, months of depositions and briefings have only served to highlight that the allegations PMW and NOM’s attorney made here are no more valid than they have been in any other state.
And why does it still matter? After all, the voters upheld the domestic partnership law, preserving the legal rights and protections for LGBT families in Washington. Perhaps if that had been the only thing at stake we would not have continued to donate thousands of hours of time to this fight after the election was over (big thanks by the way to the Perkins Coie law firm who has represented WAFST pro bono). But if the court were to rule that these petitions could be kept secret, it would take away an important tool that helps ensure accountable and legitimate elections and set a terrible precedent for future campaigns, particularly those that engender heated debate, not only here but across the country.
Washington’s Public Records Act and campaign disclosure laws, like those of other states, help to ensure that elections, especially elections addressing fundamental constitutional rights, are conducted transparently and fairly. The State clearly has a compelling interest in combating signature fraud. The Public Records Act (PRA) makes public records, including referenda petitions, available for public inspection, and in the case of ballot measures, allows either side or members of the public to inspect the records in order to establish a basis for a challenge.
WAFST sought to keep all records open, so that the public could know as much as possible when deciding how to vote. When it appeared that petitions used to qualify the measure for the ballot might be in violation of various statutory requirements, and the measure might be put on the ballot without the required number of registered voters having signing petitions, WAFST then made a public disclosure request for the petitions so that it could determine whether the Secretary of State had made any errors in concluding that certain signatures and petitions were valid. WAFST requested that the petitions be available to the public, as required by the PRA, not only so that fraud or mistake could be identified to help ensure the measure accurately qualified for the ballot, but to help highlight fraudulent tactics and practices utilized that might impact the integrity of future elections as well.
WAFST’s position is that those who cause the heated debate by promoting measures designed to lessen the rights of others should be willing to let the public ensure the election they demand is conducted fairly. It has become routine for groups like PMW and NOM to complain that public disclosure will make them vulnerable to threats and harassment. The evidence in state after state shows otherwise. Twenty-three states use ballot initiatives and referenda to enact or retain legislation and also require the petitions be public records. Between 1997 and 2009, there were eighteen separate statewide initiatives and referenda to deny or repeal legal protections for gay and lesbian persons. There are presumably hundreds of thousands if not millions of people who signed petitions in the past decade supporting the inclusion of such measures on the ballot. And yet with the full force of numerous advocacy groups opposed to civil rights for gay and lesbian individuals devoted to lawsuit after lawsuit, the anti-gay organizations have been unable to show a single court that voters suffered retaliation or were ‘chilled’ from signing a petition as a result. The anti-gay organizations, for all of their heated rhetoric in our case, have again failed to produce any such evidence. In fact, the identities of financial contributors, not just petitions signers, to Referendum 71 have been public on the State’s and other websites for two years. Nonetheless, there is no evidence that anyone who made a financial contribution to support PMW or R-71 has faced any threats, reprisals, or harassment.
LGBT individuals continue to face significant violence, discrimination, and harassment, above and beyond anything these groups have alleged, let alone experienced. The irony should not go unnoticed that these groups foster heated debate by promoting divisive measures and then complain about the robust debate that follows when people’s fundamental legal rights are at stake. These same groups and individuals demanding secrecy have fought for years against laws that would protect LGBT individuals from very real harm – from bullying in school to hate crimes. Again today, their creative narrative of victimization is not supported by the record before the Court. It is based on stories of discomfort over strong advocacy, reflecting the sorts of activities and rhetoric that are endemic to many hard-fought political campaigns.
The petition process has become a favored tool of the right for subjecting LGBT individuals to further attacks. Detection and prevention of fraud in qualifying such measures for the ballot is one of the few ways to defend against these often mean-spirited and harmful elections. LGBT people have found themselves the target of scores of ballot measures designed to treat them unequally to others. After a comprehensive study, University of Michigan political scientist Barbara S. Gamble concluded that “[g]ay men and lesbians have seen their civil rights put to a popular vote more often than any other group.” State election regulations that provide for public access to petition records provide at least some protection against hostile ballot initiatives. Exaggerated tales of victimization are used by groups such as NOM and PMW in an effort to take away this protection.
The opportunity to prevent fraudulent certification gives the gay and lesbian community a critical interest in rigorous enforcement of requirements for qualifying measures for the ballot. These interests are not merely theoretical. A recent case in Montgomery County, Maryland, demonstrates the reality of petition fraud, the importance of public oversight, and the way that such fraud deprives the public of its right to self-governance. After the council extended an anti-discrimination ordinance to protect people from discrimination based on their gender identity, the Board of Elections certified a petition to repeal the ordinance, thereby suspending its effect and leaving transgender persons without legal resource. Only after the involvement of citizens who challenged the sufficiency of the signatures was it revealed that many of the signatures were “questionable” in their authenticity, including some that may have been “patently counterfeit.” The Maryland Court of Appeals ultimately held that the petition should not have been certified and that the Board had improperly counted thousands of signatures that failed to meet state requirements. This fraud would have gone undetected if left to State officials alone, and it temporarily succeeded in denying transgender persons the legal protections they had won through the political process.
Public access to petition records also allows the public to detect fraud where support for a measure is attributed to voters who did not sign or intend to sign the petition in question. In 2006 in Massachusetts, the State Attorney General’s office launched a criminal investigation after disclosure of records from a petition to prohibit same-sex marriage prompted complaints by “more than 2,000” people who discovered that their signature had been improperly attributed to the petition, either because of forgery or because the nature of the petition had been misrepresented to them.
The National Organization for Marriage (NOM) is one of the best-known and well-funded anti-gay advocacy groups in the nation. This lawsuit in Washington State has been only one of many filed by these affiliated groups in courts and election committees in state after state, using the same attorneys and the same arguments. They promote ballot measures, drive legislative efforts and support candidate campaigns all with the stated goal of eliminating legal rights and protections for LGBT Americans. Then they initiate litigation to attempt to overturn public records and finance disclosure laws designed to provide information to the public and to ensure the integrity of elections. Since 2009, NOM has been involved in no fewer than seven lawsuits in state and federal courts or before state ethics boards to block the disclosure of its campaign donors. NOM has not just attempted to roll back disclosure laws in the states, it has also purposefully failed to disclose the identities of its campaign donors, oftentimes in violation of the law, triggering state-level investigations, court cases and appeals.
NOM’s anti-disclosure efforts have failed in case after case under claims that their supporters face threats and harassment, as they are attempting to argue here. NOM has unsuccessfully challenged disclosure laws in Maine, Minnesota, New York, California, Rhode Island, and Iowa. In 2009 a federal court rejected NOM’s suit in California attempting to block the disclosure of donors to the group’s campaign in favor of Proposition 8, the ballot initiative that rolled back the California Supreme Court’s ruling in favor of marriage equality, noting that “disclosure… prevents the wolf from masquerading in sheep’s clothing.” The federal court in reviewing claims of possible harassment, pointed out that “numerous of the acts about which [they] complain are mechanisms relied upon, both historically and lawfully, to voice dissent… This court cannot condemn those who have legally exercised their own constitutional rights in order to display their dissatisfaction with [NOM’s] cause.” NOM is still arguing that the video tape of the Proposition 8 trial proceedings should not be made public.
In New York they wanted to run ads in support of a candidate for Governor in 2010 but didn’t want to make donors’ names public. The U.S. District Court rejected NOM’s position. Last September, NOM sued the state of Rhode Island to keep its donors secret, arguing the state’s restrictions on political advertising and campaign finance disclosure requirements were unconstitutional and overly broad. A district judge disagreed, and the 1st Circuit Court of Appeals upheld the district court judge’s ruling. The First Circuit Courts upheld the Maine Ethics Commission requiring the application of those states’ disclosure laws to NOM’s anti-gay marriage campaign spending in 2009. The Minnesota Campaign Finance and Public Disclosure Board ruled that NOM must abide by state disclosure laws after a federal court rejected NOM’s appeal in 2011. A state board in Iowa informed NOM in 2009 that it would have to disclose its donors after the group sent a nationwide email to supporters asking for donations to be used in a ballot campaign against gay marriage in the state with a helpful reminder: “best of all, NOM has the ability to protect donor identities.”
NOM is well financed and well entrenched in the electoral process in their efforts to allow national and out-of-state interests to influence elections, ballot measures, and referenda without having to disclose information to the public. The group pulled in more than $7 million in 2009, according to their 2009 nonprofit status filing. Despite their efforts, disclosure has been uniformly required across the country for federal, state and local campaigns as a vital means to ensure that elections are conducted transparently and fairly.
As Washington State continues to use the initiative process with great frequency, the ability to access petition records as a means to ensure fair and honest elections remains important for the electoral process. Disclosure is essential to ensure a fair and open public debate. Regardless of the issue, full disclosure ensures that voters have the best available information and that elections are conducted with legitimacy and accountability. The history of fraud and mistake in the ballot process should teach us that electoral processes need to be more, not less, transparent.
And that is why today we will be back in federal court.
Anne Levinson chaired the Approve 71 campaign to defeat the attempted repeal of the State’s comprehensive domestic partnership law. She was one of Washington State’s first openly LGBT public officials, serving as a judge, as chair of the State’s public utilities commission, and as legal counsel to the Mayor, Chief of Staff and Deputy Mayor in the City of Seattle.