Federal Court Bars Release of Petition Signatures in Washington Referendum Contest

A federal judge in Tacoma, Washington, has decreed that the right of referendum petition signers to be anonymous outweighs the right of the public to know who is supporting a referendum to veto the enactment of a state law that expands the rights of same-sex domestic partners in Washington State. Ruling on September 10, District Judge Benjamin H. Settle granted a preliminary injunction to two anonymous plaintiffs and Protect Marriage Washington, the organization behind the referendum, under which Washington Secretary of State Sam Reed is forbidden from making the names of petition signers public, despite a state law that appears to authorize their release. Doe v. Reed, Case No. C09-5456BHS (U.S.Dist.Ct., W.D. Wash.).

In Washington, the state constitution reserves to the public the power to reject any newly-passed statute through a referendum, provided that sufficient valid voter signatures are submitted to the Secretary of State within 90 days after the end of the legislative session in which the statute was passed. The petitions require signers to give their names and addresses, so they can be verified against voter rolls.

In a separate proceeding in state court, opponents of the referendum are contesting the Secretary of State’s conclusion that sufficient valid signatures were submitted to place the referendum on the ballot and delay implementation of the statute. They claim that the Secretary of State wrongly counted the signatures of individuals who had not yet registered to vote when they signed the petitions, and that many petitions were not properly counter-signed by the signature-gatherers attesting that they had followed all state requirements in collecting the signatures. A trail judge has rejected that challenge, which is on appeal as this is being written.

Meanwhile, several groups had sought the names of the petition signers, some with the idea of posting them on-line so that Washingtonians would know who had signed the petitions and could get to work trying to persuade the signers to change their position on the referendum before the balloting takes place. Two petition signers who were allowed to proceed anonymously joined with the referendum’s sponsoring organization to seek a federal injunction against the release of the names and addresses, claiming that they would be used to harass and instigate economic boycotts against the signers, pointing to similar activities that took place in California when the names of donors to the Proposition 8 campaign were made public under a state disclosure law.

Washington’s Public Records Act generally provides that citizens can apply for access to any public record, with some listed exceptions that don’t apply to this case. Although the law does not specify that referendum petitions are public records, the petitions clearly fall within the general definition contained in the statute, and the parties agree that no statutory exemption applies to them.

Judge Settle accepted the plaintiffs’ argument that the First Amendment of the federal constitution, as well as the analogous amendment of the Washington state constitution, protects anonymous speech on matters of public concern. The judge looked to history, noting that the written commentaries published during the struggle over ratification of the federal constitution in the 1780s, now known as the Federalist Papers, originally appeared in newspapers under pseudonyms, and that there is a long tradition in American law protecting anonymous speech on political questions. He rejected the idea that signing the petitions was not a form of political speech, even though one cannot presume that all petition-signers would vote in favor of the referendum, since it was a way of communicating the signer’s view that the public should have a right to vote on whether the expanded domestic partnership law goes into effect.

While Judge Settle found that there was no prior appellate court ruling that addressed the precise question before the court, "the weight of authority, however, counsels toward the finding that supporting the referral of a referendum is likely protected political speech."

Of course, there is also a strong state interest, articulated in the Public Records Act, in transparency in government. In this connection, making public the names of petition signers is said to serve the state’s goal in "preserving the integrity of its election process" "The court agrees with Defendants on this point as it is undisputed that the State must employ some measures to prevent fraud in the referendum process," wrote the judge. "What is disputed, however, is the extent of the government intrusion on the individual’s right to anonymously participate in a political activity, i.e., whether the Public Records Act is narrowly tailored to accomplish the interest of preserving the integrity of the referendum process." Settle concluded that the plaintiffs had established "a likelihood of success on the claim that the Public Records Act is not narrowly tailored to achieve the compelling governmental interest of preserving the integrity of the referendum process," noting that the Secretary of State’s scrutiny of the petitions might adequately fulfil that purpose without releasing the names of the signers for general circulation to the public.

The court rejected the argument that the public interest in knowing who is supporting the referendum would outweigh the First Amendment anonymous speech rights of the signers. The court observed, as noted above, that there is no way of knowing whether any particular individual had signed because they thought the question should come to a public vote rather than because they wanted to see the referendum passed. Judge Settle also noted the long-established principle that any denial of First Amendment rights imposes an irreparable injury, a finding necessary to justify issuing an injunction, and in balancing the equities between the parties, he found that First Amendment concerns normally outweigh competing interests. Furthermore, he found that it is always in the public interest to "prevent the violation of a party’s constitutional rights." Weighing these factors together, he concluded that the court’s temporary order to keep the names confidential should be continued in a preliminary injunction pending a full trial on the merits of the case.

While this is not a final judgment on the merits, the state indicated it would seek an immediate appeal to the U.S. Court of Appeals for the 9^th Circuit to vindicate the Public Records Act requirement that members of the public be entitled to know who signed the referendum petitions.

Comments

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