The NYTimes discovers the “educative effects” of ballot measures

Crack reporter, Nicholas Confessore, in his story, “Anti-Gay Marriage Group Recommends Creating Tension Between Gays and Blacks,” recounts a classic tale of an interest group trying to use a ballot initiative to drive a wedge into a party’s base.

More than a decade ago, I wrote about the GOP using this tactic in California and Colorado. No time to summarize it here, but here’s a link to my 2001 article, Initiative to Party, with Caroline Tolbert on the topic, and it’s also retold in my book, Educated by Initiative.

 

Disclosure of Popular Referendum Ballot Signatures Affirmed by Federal District Court

Big news on ballot initiative disclosure today from the United States District Court in Tacoma, WA. The federal judge granted summary judgment in the Doe v. Reed remand, dismissing the remaining as-applied challenge to the application of Washington’s Public Records Act disclosure requirement for signature pages of Referendum 71, an effort to repeal the legislature’s bill granting same-sex civil union protections.

The opinion, following Justice Scalia’s wisdom that public disclosure is necessary and belittles the weak factual record produced by the plaintiffs, noted that “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 instead of the rule.”

Ruling here and some excerpts, (via Rick Hasen):

More from the opinion:

Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as “serious and widespread.”

……

Considering the foregoing, Doe’s action based on Count II falls far short of those  an as-applied challenge has been successfully lodged to prevent disclosure of information otherwise obtainable under the PRA. Thus, the State’s undoubtedly important interest in disclosure prevails under exacting scrutiny.

While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence. The right of individuals to speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society. The facts before the Court in this case, however, do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.

It’s Time to Disclose Washington’s Referendum 71 Petition Signatures

As reported in the Seattle Times, a federal judge in Tacoma, Washington, is expected to rule in the next two weeks on whether the 137,500 names collected on Referendum 71 petitions should be made public.  The 2009 signature gathering campaign by Protect Marriage was an effort to use a popular referendum to overturn the state legislature’s domestic-partnership law.

As the lead author of  an amicus brief on behalf of the state of Washington and its defense of the state’s Public Records Act in the 2010 case, Doe v. Reed, in which the US Supreme Court upheld the state’s interest in disclosure, there is no question that the names on the petitions should be made public.  As I wrote in my amicus brief, there’s little credible evidence that signers of Referendum 71 petitions in Washington were subject to threats or harassment.  As our amicus brief states:

Nor does disclosure create any risk of intimidation or harassment of signers. Of the approximately 600,000 voters who signed referendum petitions in Washington in the last decade, Petitioners have failed to identify a single individual who claims to have been harassed or intimidated as a result of mere disclosure of her signature. More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the internet. Yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.

Furthermore, as we note in our brief:

Disclosure does not “infringe ‘privacy of identity, association and belief,’ as Petitioners suggest, because there is no reasonable expectation or assumption of privacy or secrecy: any voter who signs a petition knows that her signature, name and address, and the fact that she is signing, are being put on paper in the hands of a stranger, in a public place, in front of others, and then submitted to a government agency. Further, public disclosure of petitions is widespread and routine in states that allow ballot initiatives and referenda.

Public disclosure of signatures on ballot measures is also necessary to ensure fraud is not being committed during signature gathering phase and the state of Washington has a compelling interest in making signatures part of the public record.

U.S. District Judge Benjamin Settle should heed the words of Justice Antonin Scalia, who wrote pointedly in his concurring opinion in Doe v. Reed, why disclosure is necessary, and can embolden citizens.

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a 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. For my part, 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.

Signed,

Not Anonymous.