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Back to Section One | Back to Arts & Entertainment
posted Friday, August 13, 2010 - Volume 38 Issue 33
R71 names will remain sealed, federal judge says
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R71 names will remain sealed, federal judge says

by Mike Andrew - SGN Staff Writer

The names of Washington voters who signed petitions to put Referendum 71 on the ballot will remain sealed for now, a federal judge ruled on August 11.

U.S. District Court Judge Benjamin Settle denied the state's request for immediate release of the names, in spite of a U.S. Supreme Court ruling in June that the names are public information.

In Doe v. Reed the U.S. Supreme Court agreed with Washington's Attorney General Rob McKenna and Secretary of State Sam Reed that releasing the names would not violate the 1st Amendment rights of the signers.

The Supreme Court also said that Protect Marriage Washington - the organization that ran the petition drive that put Referendum 71 on the ballot - may return to lower federal courts to argue that disclosure of the names might result in specific harm to the signers - harassment, for example.

At the same time, there is a case pending in state court, also with a restraining order in place preventing the release of Referendum 71 names.

Consequently, Settle ruled on August 11 that the names should not be released immediately because doing so would make any future litigation moot, since the names could not be re-sealed after being published.

Dan Sytman, spokesperson for Attorney General Rob McKenna, told SGN, "We objected to the temporary restraining order remaining in place because members of the public have been waiting over a year to obtain these public records. However, we're not surprised the order will remain because, had the judge allowed the petitions to be released, the case would be over."

Anne Levinson - Chair of Washington Families Standing Together, and one of the attorneys who intervened in the case on their behalf - told SGN that under the circumstances, "the R-71 petitions couldn't have been released yesterday."

While Settle refused to order that the names be released immediately, he did agree to fast-track hearings on the remaining issues in the case.

Both the state and Protect Marriage Washington will now have 10 days to provide lists of witnesses, 45 days for briefings, and 60 days for discovery.

According to the Secretary of State's office, the case could reach trial by November. That trial is not likely to be the final word, however, since any outcome is almost certain to be appealed.

"Our position remains the same going forward as it was at the U.S. Supreme Court," Levinson told SGN. "The State and the public have an important interest in elections being free from fraud and mistake. As we argued in our brief to the Court, there have been many instances here and in other states where fraud and mistake were discovered only because of third parties or voters being able to see the petition signer information."

The Secretary of State's Elections Division also noted, in an August 12 statement, that "nearly 2 million signatures have been released in recent years, without apparent incident."

Levinson remains confident that, ultimately, courts will order the names released.

"They have, to date, submitted absolutely no evidence of anyone ever having been harassed for signing any petition," she said. "So they can continue to pound the table all they want, but in a federal court, they are actually going to have to rely on facts and on the law."

The Referendum 71 case has a complicated history.

As Protect Marriage Washington was circulating Referendum 71 petitions, Gay blogger Brian Murphy said he would post the names and addresses of petition signers on his website.

Protect Marriage Washington then filed suit to prevent him from getting access to the information.

In September 2009, Settle approved their request to seal the names. McKenna and Reed appealed, arguing that the state's Public Records Act requires release of all public documents, including petitions.

The Ninth Circuit Court of Appeals agreed with McKenna and Reed, and overruled Settle. The U.S. Supreme Court then agreed to review the case, and issued its opinion on June 24 this year.

The case may ultimately end up before the Supreme Court again.

"If we prevail, of course, there is always the distinct possibility of appeals going all the way to the U.S. Supreme Court," Sytman noted.

Josh Friedes, executive director of Equal Rights Washington and campaign manager for Washington Families Standing Together, said he was not surprised by Judge Settle's decision.

"I'm pleased to see he agreed to expedite the schedule," Friedes told SGN. "We'd like this to be brought to closure as rapidly as possible. This issue is - in a way - distracting the community and the media from the real issue: that our [LGBT] families still do not have equal status under the law."

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