Doe v. Reed isn’t really about Washington’s everything-but-marriage laws. It only seems that way. Those were the issues fought over in 2009 when a group called Protect Marriage Washington gathered enough signatures to put Referendum 71 on the ballot. If the effort had been successful, which it wasn’t, it would have overturned the latest legislation to broaden domestic partnership rights. But when lawyers for the group asked a federal judge to block disclosure of the names of 128,000 voters who signed R-71 petitions, it became an issue of public disclosure and open government.
Are the petitions submitted to secure a referendum a place on the ballot public records? If so, can disclosure be blocked in cases where signers risk threats, harassment or reprisals for the actions? Could such threats chill the signers’ First Amendment rights? I’ve always assumed petitions were public documents, as they should be. But the state for years had determined they were not. Current Secretary of State Sam Reed had reversed that position and took on the court challenge, arguing that the infringement on speech is minimal and does not outweigh the need for transparency and fraud prevention. Reed lost at the District Court, but prevailed at the Court of Appeals and at the U.S. Supreme Court.
“We conclude that disclosure under the (state public records act) would not violate the First Amendment with respect to referendum petitions in general,” wrote Chief Justice John Roberts in June 2010. Seven justices agreed, with Justice Antonin Scalia the most blunt. “For my part, I do not look forward to a society that, 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,” Scalia wrote in a concurring opinion. “This does not resemble the Home of the Brave.”
‘Reasonable probability’
So why was everyone back in U.S. District Court Judge Benjamin Settle’s Tacoma courtroom on Oct. 3? They were there, some reluctantly, because the Supreme Court gave Protect Marriage Washington the opportunity to show that in this specific case there is “a reasonable probability” that release of signers’ names will still subject them to threats, harassment or reprisals. That’s the standard applied in previous cases to protect the NAACP and the Socialist Workers Party.