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The U.S. Supreme Court has rejected a request by Protect Marriage Washington that the state be blocked from releasing further copies of Referendum 71 petitions while PMW appeals an earlier Federal District Court decision that ordered their release.
The request had been made to U.S. Supreme Court Justice Anthony Kennedy who apparently referred it to the entire Court. Justice Alito alone would have granted an injunction and Justice Kagan “took no part in the consideration or decision”, making this a 7-1 decision.
“This means that we can once again release these public records,” said Katie Blinn, the state elections co-director.
In 2010 the Supreme Court ruled 8-1 against Protect Marriage Washington in an earlier phase of the same case, Doe v. Reed. At that time, PMW was trying to strike down all public records laws across the country that give the public access to initiative or referendum petitions once those petitions are submitted to the state. In the current phase of the case, PMW is asking for a special exception to keep only R-71 petitions secret.
Referendum 71 was the 2009 ballot measure that PMW used to try to repeal Washington’s domestic partnership law. In November, 2009 over 53% of the Washington electorate voted to approve Referendum 71, making Washington the first state in the nation to vote affirmatively in support of comprehensive relationship recognition for LGBT families.
In the Supreme Court’s 2010 opinion on the first phase of the case, Justice Antonin Scalia made this now-famous statement:
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is the price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.
Undoubtedly with the Supreme Court’s 2010 ruling in mind, Federal District Court Judge Benjamin Settle rejected in his October 17th ruling PMW’s claims that R-71 signatories needed a special exemption from the state’s Public Records Act (PRA). Rejecting PMW’s claims that R-71 signatories would be threatened or harassed if their names became public, he said:
Doe has only supplied evidence that hurts rather than helps its case. … Doe asked the Court to grant an exemption to the PRA based on a few experiences of what Doe believes constitutes harassment or threats, the majority of which are only connected to R-71 by speculation. If Doe’s position were correct, then . . . anyone could prevail under such a standard in the context of referenda, which are often heated, regardless of the subject matter.
The question remains whether PMW will proceed with their plans to appeal Judge Settle’s ruling in the 9th Circuit Court of Appeals. It would seem foolish, since after Judge Settle’s ruling dozens of sets of the R-71 petitions were released by the state to the public. Several sets of the petitions have since been posted online by members of the public and are therefore beyond the Court’s control. In addition, some Doe witnesses have outed themselves. And now, of course, the U.S. Supreme Court itself has left the spigot open.
The list of Doe plaintiffs and witnesses includes some anti-gay activists whose names Blend readers will recognize, including Pastor Ken Hutcherson, PMW spokesperson Pastor Gary Randall, former legislative candidate Elizabeth Scott (endorsed by supposedly “not anti-gay” Republican gubernatorial candidate Rob McKenna), state Senator Val Stevens, PMW’s campaign manager Larry Stickney, PMW spokesperson Robert Struble, Ronald Perkins, and alleged fraudsters Pastors Roy Hartwell and Valerie Hartwell.
PMW is affiliated with the anti-gay hate group National Organization for Marriage. Doe v. Reed is just one in a string of NOM-linked cases seeking — unsuccessfully — to use ballot measures and legislative campaigns about domestic partnerships or marriage equality as vehicles for attacking campaign finance disclosure and other open government laws. Recent articles describing related NOM-linked cases can be found here and here.
18 Comments
You know these adults as kids were the one’s you didn’t want to play with. I think ‘Poor Losers’ is the best description of them.
It just boggles my mind at the arrogance of the religious reicht, thinking they’re above the Constitution.
But then one must realize that in many of the minds of the religious reicht, NOM, and the other fundamentalist hate groups, there is this delusion and disassociation from reality — that they are somehow exempt from the laws based on the Constitution, but instead their own twisted and perverted interpretation of their so-called “holy” book.
Some anti-LGBT activists like some of those involved in this case do seem to have a persecution complex and an inability to look impartially at facts. They seem prone to ignoring any facts that don’t fit into their paranoid imaginings.
Unscrupulous people like James Bopp, the GOP lawyer behind all these cases, seem happy enough to feed into their paranoia so that he can use them in his cold political attempt to undermine the ability of the public to demand open government. Luckily the federal courts, US Supreme Court included, see through the false cries of “scary gays gonna get us!!” and see these cases for what they are: meritless attacks on necessary open government laws.
Thank you for bringing us this update, Laurel.
As someone who has been involved with seven initiative and referendum campaigns at the local level I can say without hesitation that this is a horrible decision. Keeping the names of petition signers confidential is essential to the practice of participatory democracy. The issues I’ve been involved with always pitted the citizenry against a cabal of local developers and their puppets on the city council who tried to destroy our quality of life with massive development projects. Many people who signed our petitions would not have done so if their bosses and employers had access to their names.
You work for the city and want to sign a petition opposed by your own city council? Sell real estate and sign a petition that will reduce the number of new units available for sale? Work in construction or at a lumber yard/hardware store and want to sign a growth limitation petition? In all of these examples, your job can be in danger.
And I’ll point out something else: not everyone who signs a petition agrees with the perspective of those circulating it. I know from personal experience that some people believe that voters should get to decide important issues. They’ll sign an initiative petition to get a measure on the ballot, then listen to the arguments for and against, and vote accordingly. I’ve even had people tell me that they would vote “No” but feel that voters as a whole should make the decision.
I beg to disagree. This petition was part of the legislative process. Legislative matters must be kept transparent.
If you don’t want transparency in legislation, don’t be a referendum/initiative state.
What horseshit. Except for recall petitions, all initiative and referendum drives are part of the legislative process. And the legislation is transparent: here’s the text of the bill, and this is the total number of valid signatures to qualify it for the ballot. (Every state that I know of requires the petition to carry a summary, written by the Secretary of State or Attorney General, of what the bill does. And in the case of referendums, the entire text of the measure to be repealed must accompany the signing sheets, which is way referendum petitions are usually circulated as bound booklets with the signing sheets either at the front or the back.)
I notice you did not address the specific dangers of people facing retribution for signing petitions. Or is that the idea? You know, let’s go harass the folks who sign petitions to stop gay marriage? Because the other side plays that game really, really, really well, too. So what happens to the initiative to introduce public campaign financing, or the one for term limits, or the one to stop the Keystone XL pipeline from crossing your state, or the one to ban hydrofracking in your state? How about the Scott Walker recall petitions in Wisconsin? Think a few people who work for various levels of government, or for Koch companies, or for Wal-Mart and other big non-union companies, might worry if their bosses had access to their names.
This might tell you how important it is to keep the names of petition signers confidential:
In California it is a crime for the people who circulate a petition (the proponents) to maintain a copy of the signing sheets or any other record of who signs. These names would make a great mailing list for the election, but the sanctity of confidentiality is so important that this is a risk too big to take.
And another thought: how about the confidentiality within families? You happen to be married to a bigoted pecker-wood who’s against gay marriage, but maybe you would sign a petition to legalize gay marriage — as long as your hubby would never find out. Same for 18 year-old voters who still live at home, depend on their parents for college money, etc., but are more liberal and enlightened than mom and pop.
How about future employers cross-checking petition signer names against job applicants? Hell, employers already check Facebook, you don’t think they would do the same for political advocacy issues?
And the great thing about employers checking petition signatures is…
You’d never even know why you didn’t get the job, or never got called for an interview.
And how about financial institutions checking petition signers during the loan approval process? How’d you like to get turned down for a re-fi because you signed a petition to cap interest rates on credit card debt, or some such thing?
As Phil2 said, to sign a referendum or initiative petition is to participate in the legislative process as citizen-legislators. We don’t let our legislators debate and vote in secret, so why would we allow those proffering legislation via initiative do so?
I think you may have misunderstood this current ruling. It didn’t change any laws, it merely upheld them. Every state with referendum or initiative systems but one (I think there are 23 referendum states) consider petitions to be public documents once they’re submitted to the authorities for signature verification. So all those signatures you’ve collected over the years on all those ballot measures you’ve worked on have been and continue to be public information.
The reason the US Supreme Court continues to rule in support of open records laws that make such petitions available to the public is because without public oversight, mistakes made by signature validators or fraud in the system can go unrecognized and unchecked. Citizens should always have oversight of their government. I suggest that you read the brief filed by the Direct Democracy Scholars with the Supreme Court last year in the first round of this case. It describes actual cases where ballot measures were put on the ballot in error, and the error was only detected by citizens who had access to petitions and double-checked the government’s work.
FYI California is the only state that doesn’t consider petitions public documents. They do, however, disclose the identities of campaign donors.
Campaign donor disclosure I’m all for.
And I live in California, which was one of the first states (IIRC) to embrace the populist initiative/referendum/recall process. (Thanks to Hiriam Johnson.)
As for fraud in the verification system: my personal experience with initiative drive signature verification is that, if anything, it errs too much on the side of disqualification. I’ve seen signatures disqualified because the person omitted the unit number of their apartment or condo, their middle initial, left off the street designator (i.e. wrote Crenshaw instead of Crenshaw Blvd or 187th instead of 187th Street) etc., but all other data was correct and the signature itself was a match.
CA may not allow the public to see the submitted petitions, but can I conclude from what you said that you’ve been able to monitor the signature verification process? If so, then you understand how important citizen oversight is. In WA a handful of citizens are allowed to oversee the signature verification process too, but never in numbers large enough to be sure that they’ve had oversight on every signature the state checks. That’s why it’s important to have independent access to copies of the petitions.
If you folks in CA had access to petitions and the state was invalidating too many valid signatures and a measure didn’t make the ballot for that reason, you could prove that in court. But without the petitions to do a thorough and independent assessment yourselves, there’s no way you can prove your supposition. This is why the petitions should be public.
In CA petition proponents are allowed to see the results of the certification process. Every disqualified signature has a code denoting the reason it was disqualified. (i.e., not registered to vote at that address, duplicate signature, incomplete address, name mismatch, etc.) And yes, you do get to go to court to contest those signatures that you think were unfairly disqualified. Although it didn’t happen to me and our group, my attorney represented petition proponents in a neighboring city who successfully sued and got a number of signatures reinstated by the court.
Let’s put the real cards on the table: this is about the ability of those who support gay rights and gay marriage to exact retribution against those who have signed Prop 8-type initiative petitions. Whether or not this blows back and endangers qualifying other initiative measures which are progressive doesn’t matter. It’s all about this crusade.
Ah. Now it all comes out in the open. So, in the other 29 states that have had these referenda placed on the ballots, where is this mass retribution BeachPopulist? Still waiting…… (crickets)
I’m glad to hear that there is a mechanism in CA for people to check over the signatures that were rejected. However, I doubt that you have a way to check signatures that were accepted to be sure they were legitimate. So, you’ll never know how many measures were placed on the ballot in error.
I find this comment interesting. You said “Let’s put the real cards on the table: this is about the ability of those who support gay rights and gay marriage to exact retribution against those who have signed Prop 8-type initiative petitions.” Nope. First of all, it wasn’t the gay rights people who created the public records laws, it was an overwhelming majority of voters (72%) who, via initiative, enacted Washington’s Public Records Act.
Second, if anyone in CA or WA wanted retribution against supporters of the anti-gay measures, why haven’t any of the campaign donors come forward to complain of being on the receiving end of illegal retribution? Their names and addresses have been public for years now. And unlike petition signers, who as you said may sign a petition even if they intend to vote against the measure, we can be pretty certain that campaign donors really support the measure. So campaign donors should be most vulnerable of all to retribution. But there hasn’t been any. The federal district court judge in CA threw out the ProtectMarriage.com v. Bowen case for the same reason the judge in WA has thrown out the Doe v. Reed case: because there’s no evidence of retribution.
On the contrary, it is the anti-gay forces who keep attacking gay families by trying to strip us of our civil rights via ballot measures. Is it any wonder we want to be able to verify that such heinous measures don’t get placed on the ballot in error?
Look at it from the opposite direction for a second… if signatures on a ballot initiative are kept private, then this turns into a whole “who watches the watchmen?” situation. If your local cabal of developers wields as much influence as you claim, it’s not hard to imagine that they could introduce a petition with forged signatures, pay the city council to “look the other way”, and then hide behind anonymity, claiming that it was popular enough on its own to get the necessary signatures.