A federal court in Washington state lifted an order preventing the release of the identities of more than 137,000 people who signed a 2009 petition to challenge a Washington law that would extend benefits to same-sex domestic partners.
Monday’s ruling follows the U.S. Supreme Court’s 2010 decision in Doe v. Reed, in which the Court rejected the argument that allowing any disclosure of referendum petitions under the state public records act violated individuals’ First Amendment rights, but sent the case back to the lower court to determine if such records should be released in this particular case.
First, the district court noted that the organization seeking to keep the names and addresses of the petition signers from being released, Protect Marriage Washington, would have to show “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.”
The court went on to explain that, traditionally, courts have never allowed parties to resist disclosure where “a group, organization, or political party . . . did not have minor status.” With respect to the Referendum 71 petition signers, the court found that they were unlike groups which have received such protection from disclosure in the past in part because of their minority status, such as the NAACP and the Socialist Worker Party.
“Doe has not supplied competent evidence or adequate authority to support its claim that the R-71 signers constitute a fringe organization with unpopular or unorthodox beliefs or one that is seeking to further ideas that have been ‘historically and pervasively rejected and vilified by both this country’s government and its citizens,’” said the court.
Second, the court examined the evidence of “threats, harassment, or reprisals” presented by the petition signers. In other cases where courts decided to grant parties such an exemption from disclosure, said the court, the plaintiffs had presented “ample, uncontroverted evidence” of a probability of such actions.
While the plaintiffs presented evidence of threats or harassment reported by 18 identified supporters of the referendum, the court found this evidence to be insufficient, as it was taken from individuals who had publicly supported the referendum.
The court did not believe the evidence of the threat to the petition signers was significant enough to keep the names private. According to the court, this would make nondisclosure of such petitions “the exception instead of the rule,” as “referenda . . . are often heated, regardless of subject matter.”
In 2009, Washington Gov. Christine Gregoire signed Senate Bill 5688 into law, which expanded the rights of state-registered domestic partners. Protect Marriage Washington, an organization against same-sex marriage, then collected and submitted the petition signatures to the secretary of state to place a referendum on the ballot that would revoke the new law.
The secretary of state then began checking the signatures to ensure that only legal ones were counted toward the required number: 4 percent of state-registered voters. When the secretary received requests for the petitions under the state public records act, the Christian-based group and some of the petition signers sued to stop the release of the documents.
While the state has already released their names, the plaintiffs’ attorney James Bopp, Jr., is still appealing the ruling to the Ninth Circuit Court of Appeals. He said the judge in this case “require[ed] an impossibility.” That is, he says the judge insisted the plaintiffs “provide proof that people whose identities were never known were subject to harassment,” but those people would not have been harassed, since they did not make their identities public. He also believes the court misunderstood precedent in analyzing whether the organization had “minor status.”
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.