Supreme Court Report

On the Campaign Trail


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In early 2009, the state legislature passed the law, dubbed the “everything-but-marriage act,” that greatly expanded the rights of domestic partners, including those in same-sex relationships. In May last year, Protect Marriage Washington took to the streets to gather some 138,000 signatures to place a ballot measure before voters to repeal the domestic-partnership law before it could take effect.

One thing on the mind of Larry Stickney, the campaign manager of Protect Marriage Washington, was the 2008 experience in California. There, opponents of the Proposition 8 constitutional meas ure defining marriage as between a man and a woman had publicized the names of contributors to the pro-Prop 8 campaign. What followed were threats to some sup porters and boycotts of their businesses by “the powerful homosexual lobby,” says Stickney, a conservative activist and former state legislative aide who lives in Arlington, Wash., north of Seattle.

THREATS MOUNT

Stickney says organizers and petition signers who forced a vote on the Washington state measure known as Referendum 71 feared the same sorts of threats. Two websites issued vows to obtain petition documents and place the names and addresses of signers on the Inter net. Stickney says he began receiving threatening telephone calls and e-mails.

“We even moved our family to the interior bedroom of our house for fear” of harm, Stickney says. Petition signers who appeared at rallies or gave media interviews faced harassment, he contends.

“That’s the kind of climate we’re in,” says Stickney. “Politics has gotten much meaner in America in the last 20 years. And we’re talking about here in the North west, where we’re known for politeness.”

Besides civility, another characteristic of Washington state is open and transparent government. The state’s Public Records Act requires that signed petitions be made available for inspection and copying by the public.

“We are a very open public records and public meeting state,” says Washington Secretary of State Sam Reed. “We have viewed [petition signing] as a very public act.”

Reed’s office concluded that Protect Marriage Washington had enough valid signatures to put Referendum 71 on the November 2009 ballot. But the office also received public records requests from groups that sup ported the domestic-partnership law, who were interested in challenging the validity of signatures, as well as from a group that planned to post signers’ information on the Internet.

Last July, just days after the petitions were filed, Protect Marriage Washing ton and two petition signers, identified as John Doe Nos. 1 and 2, sued the state, contending that public disclosure of the petitions would violate their First Amendment rights of speech and association.

In September, as the referendum campaign was heating up, a federal district judge enjoined the secretary of state from any public release of the petitions. In Octo ber, a panel of the San Francisco-based 9th U.S. Circuit Court of Appeals stayed the injunction, but the U.S. Supreme Court intervened to reinstate it.

In November, Washington state voters sustained the everything-but-marriage act by a vote of 53 percent to 47 percent. In the meantime, the 9th Circuit held that the public disclosure requirement had only an “incidental” effect on the petition signers’ First Amendment rights. In January, the high court agreed to take the case.

The justices heard arguments in Doe v. Reed on April 28. The case comes during what may be the biggest year for election law since 2000, when the Supreme Court decided the presidential election case of Bush v. Gore.

In Citizens United v. Federal Election Commission, a 5-4 Supreme Court majority ruled in January that corporations have a First Amendment right to make independent expenditures, such as for TV advertising, to support or oppose political candidates. However, an 8-1 lineup of the justices upheld the provisions of the Bi partisan Campaign Reform Act of 2002—the McCain-Feingold law—that require disclosure and disclaimers about such independent election communications.

Justice Clarence Thomas dissented on the disclosure and disclaimer provisions, citing the alleged intimidation of Proposition 8 supporters in California. “The success of such intimidation tactics has apparently spawned a cottage industry that uses forcibly disclosed donor information to pre-empt citizens’ exercise of their First Amendment rights,” Thomas wrote.

In a case in March, the U.S. Court of Appeals for the District of Columbia Circuit unanimously struck down federal limits on individual contributions to independent groups—so-called 527 organizations—that spend the money for or against candidates for federal office. The court said it was compelled by the holding in Citizens United that independent expenditures did not give rise to corruption concerns. But in SpeechNow.org v. Federal Election Commission, the court upheld the application of disclosure requirements to the independent groups.

To some legal experts, these courts’ upholding of disclosure requirements bodes well for the state of Washington and its requirement that referendum petitions be made public.

John C. Keeney Jr., a partner at Hogan Lovells in Washington, D.C., and the chair of the American Bar Association’s Standing Committee on Election Law, says the portion of Citizens United upholding campaign-disclosure requirements “takes a lot of the excitement and uncertainty out of Doe v. Reed and puts it to rest.”

“It’s hard to see that the Supreme Court is going to do anything different than uphold what the state of Washington did,” says Keeney, who stressed that he was speaking for himself and not the ABA or the election law committee.

FIGHTING INTIMIDATION

The lawyers for Protect Marriage Washington and the John Does stress the American tradition of anonymous political participation.

“There are two great enemies of citizen participation in our republic—corruption and intimidation in elections,” said the merits brief filed by James Bopp Jr., a Terre Haute, Ind., lawyer who is a member of the Re publican National Committee and a longtime legal advocate against campaign-spending restrictions.

Bopp argued that Washington state’s requirements compel petition signers to disclose personal information. That is not a constitutional problem when petitions are kept private by state officials, who must verify the number of signatures and guarantee against fraud. But requiring public disclosure of petitions violates signers’ First Amendment right against compelled speech, he said.

BALANCING POWER, RISK

Washington argues that when citizens sign a referendum petition in that state, they are exercising a form of legislative power, since they are seeking to put a legislative act before the voters. Petition gathering “is a quite public action carried out at grocery stores and other public places,” Reed adds in an interview. “Anyone who comes along can read the names.”

The secretary of state says he takes seriously concerns about harassment of anyone in the process. But any such harassment or intimidation is a separate matter than can be handled under existing laws, Reed says.

Washington ranks fourth in the number of referendums on the ballot among the 24 states that permit citizens to challenge recently enacted legislation at the ballot box, according to a friend-of-the-court brief filed on the state’s side by four political science professors.

Richard L. Hasen, a professor at Loyola Law School in Los Angeles and the author of the Election Law Blog, says it is not self-evident that signing a referendum petition is First Amendment-protected activity.

He notes that the Supreme Court not only intervened to maintain the injunction barring disclosure in the Washing ton case but also blocked plans for closed-circuit TV coverage of the federal district court trial in San Francisco over gay marriage, presumably in response to fears that witnesses against gay marriage would face harassment.

“It will be interesting to see how the justices try to reconcile their earlier cases” upholding disclosure rules, says Hasen. In the wake of the rulings allowing more campaign speech by corporations and independent groups, “the disclosure rules become ever more important,” he adds. “To the extent that this case gives the court a chance to cut back on disclosure, I find that troubling.”


Mark Walsh is a freelance reporter at the U.S. Supreme Court.


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