Category Archives: referendum

The Court’s order is here. Justice Alito would have granted the application, showing he remains quite concerned about mandated disclosures in the political context (concerns which I contend are overblown).  This means that the names of those who signed the anti-gay rights petition may continue to be disclosed by the state.

This request for an emergency stay followed the 2-1 Ninth Circuit order in this case.

You can find the court’s order, along with a dissent, here.  Dissenting Judge Smith, in addition to disagreeing on the mootness question, apparently has a much broader view of the meaning of “harassment” to support an exemption for disclosure of political data.  (I address the harassment issue in this draft paper.)

The state of Washington just won summary judgment on remand in the Doe v. Reed case involving disclosure of the names of people signing a referendum concerning Washington State’s gay rights law.

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.”

Here is another excerpt from the Court’s conclusion:

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.

The Plain Dealer reports.