Federal Court Judge Orders Release of Referendum 71 Petitions. Ruling Upholds State’s Public Records Act


Oct 17, 2011

Statement of Anne Levinson, Chair, Washington Families Standing Together

Federal Court Judge Orders Release of Referendum 71 Petitions
Ruling Upholds State’s Public Records Act


Today, Federal District Judge Benjamin Settle, a George W. Bush appointee, ruled that Protect Marriage Washington (PMW), an affiliate of the anti-gay National Organization for Marriage (NOM), was not entitled to an exemption from the Public Records Act and that Referendum 71 petitions must be made available to the public by the Secretary of State. The case, Doe v. Reed, stemmed from the 2009 Referendum 71 campaign.

PMW had sponsored Referendum 71 in an attempt to repeal the state’s domestic partnership law. As PMW turned in petitions to get the measure on the ballot, they also filed suit to keep their petitions from being released to the public by the Secretary of State. Washington Families Standing Together (WAFST), the group that led the effort to keep the domestic partnership law from being repealed, had made a public disclosure request in order to review the petitions so that it could determine whether there were sufficient legal signatures to qualify the measure for the ballot. Voters had contacted WAFST with concerns that that they had been misled into signing petitions and observers had noted other problems with some petitions, including some signers who were not registered voters.

Under Washington State law, anyone who disagrees with the determination of the Secretary of State that an initiative or referendum has the necessary number of signatures of legal voters to qualify it for the ballot may challenge that determination in court. The only way to do that is to have access to the petitions in order to review them for fraud or mistake. Without being able to inspect the petition sheets, there is no way for citizens or organizations to make sure ballot measures that don’t legally qualify are kept off the ballot, as the law allows.

“Providing the public information about signers of petitions and contributors to campaigns serves important public education and anti-fraud goals for elections. The Court’s ruling today is a victory for all those who care about ensuring fair and legitimate elections. Had the Court agreed that these ballot measure petitions could be kept secret because the referendum’s sponsors were bothered by some who voiced opposition to their point of view, it would have set a terrible precedent for future elections.” said Anne Levinson, chair of WAFST.

PMW had argued that those who oppose equal rights for gay and lesbian families would be harassed and intimidated if petitions were public information. They and their allies made similar arguments about public disclosure of the names of contributors to their campaign committee, but lost that battle as well.

“The irony should not go unnoticed that these right-wing groups promote divisive measures and then demand a special right to secrecy because the strong disagreement that follows makes them uncomfortable. Yet these same groups and individuals who say they may be harmed by the public having information about an election are never troubled that the very laws they try to get passed through these campaigns result in real harm to LGBT individuals and families. These groups sponsor measures with an agenda of taking away rights and then sue with exaggerated tales of victimization in an effort to hide from public view and to take away the ability of those who stand up against them to protect themselves and their fellow citizens. The Court found that the assertions they made here were no more valid than they have been in any other state where they have tried the same arguments,” Levinson added.

Referendum 71 was on the ballot in November, 2009. More than 53% of voters voted to approve 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.

From the Court’s ruling:

” Doe has not and cannot with any credibility analogize their situation to that of a small group of rank and file members of the [Socialist Workers Party] or the NAACP.” Page 15.

“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.’”

“[N]o doubt the majority of people who signed an R-71 petition did so in a public place or forum and could have been contacted by mass publication or other means to obtain their testimony as to any threats, harassment or reprisals they had experienced in connection to their signing of the petition. However, no such evidence exists in the record before the Court.”

Page 30.

“Doe has failed to supply sufficient, competent evidence that the publically known donors–as active supporters of R-71–have experienced sufficient threats, harassment, or reprisals based on the disclosure of their information in connection to R-71 that would satisfy the reasonable probability standard that Doe must meet in this case.”

“Doe has only supplied evidence that hurts rather than helps its case.” Page 32.

“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. Indeed, if a group could succeed in an as-applied challenge to the PRA by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand, disclosure would become the exception rather than the rule.” Page 32-33.