On Wednesday, the proponents of Referendum 71 ( the unsuccessful effort to repeal last year’s everything but marriage domestic partnership law) will face off against the State of Washington in the United States Supreme Court to determine whether the First Amendment protects against the release of the identity of initiative/referendum petition signers under the Washington Public Records Act. Though this dispute has been the subject of prior articles, I reviewed the briefs filed before the Supreme Court to see how the parties’ respective arguments developed.
The Briefs of the Referendum 71 proponents are very strong. They focus well on the notion that signing an initiative is political speech subject to the broadest protection of the first amendment against intimidation, arguing corruption and intimidation are the two biggest threats to a democracy. The biggest weaknesses of their argument are (1) the lack of a record of harassment in connection with referendum 71 and (2) the question whether signing a petition is an anonymous act.
The Proponents anticipated both these issues by arguing the record of harassment during the Proposition 8 campaign in California (the successful effort to constitutional the ban on gay and lesbian marriage) and constructing a multi-step analysis of anonymity suggesting that while signers agreed to disclose their identities to the petition signature gatherers and other signers who see their signatures and to the State to confirm the validity of the signatures, they did not agree to disclose their identities to the public through the public records act.
There are several fallacies to these arguments. First, this case is supposed to be decided on the basis of the record in Washington, not California, least the case turn into national rule protecting the anonymity of anti-gay marriage advocates. Second, in California, the disclosure was of campaign contributors not initiative signatories. The initiative and referendum process is distinct and should be subject to a separate analysis from campaign contributions. The ultimate danger of this argument, as I’ve noted here before, is that if the proponents succeed, the case will set substantial precedent to protect the anonymity of campaign contributors to anti-gay marriage supporters, which would be a substantial change in the current law. Third, unlike the typical anonymous speech case, i.e. handing out an anonymous unsigned pamphlet, the speakers here did not actively try to keep their speech (the signatures) anonymous when they signed.
The State’s brief taking up the side of gay rights activists—which, notably, will be argued on behalf of all the defendents by recent Tea Party hero Washington Attorney General Rob McKenna—is not particularly well done. I have read a lot of briefs from the State’s solicitor general’s office and they uniformly tend to be well-written and persuasively argued. This brief was not. The State starts somewhat awkwardly by arguing a technical point (whether this is a facial or as-applied challenge) to advance the otherwise good argument that the proponents are seeking too broad a ruling about anonymity in the context of the initiative and referendum process. The State then focuses on the argument that the initiative and referendum process is a legislative process and voters therefore should be treated like legislators proposing and enacting legislation not individuals exercising free speech rights. While it is true the initiative and referendum process is an exercise of the legislative process, it does not intuitively follow that citizens participating in the process are not engaging in political free speech activity. To me this is not one of your lead arguments, although it is an argument that should be made. Next, the State argues that signing a referendum is not core political speech because the contents of the initiative or referendum are written by a third party. Again, this feels like a technical argument that is not particularly compelling—people signing Referendum 71 were generally making a political statement about of their beliefs on gay marriage and domestic partnership benefits. Finally, the State makes the argument that this is not anonymous speech, an argument that should have been one their lead arguments.
Protect Washington Families Standing Together, the opponents of Referendum 71, are also defendants in the lawsuit. Their brief was quite good and will add some needed weight to the State’s argument. They posited a new argument not ruled upon in either the appeal or trial court below, namely that the initiative and referendum process is uniquely a creation of State constitutions and therefore States should be granted substantial discretion in creating the ground-rules for the process. Such rules can include public disclosure of initiative/referendum petition signatories as a means to assure both the State’s interest in a fraudulent free process (confirming the requisite number of valid signatures and that the signatures are validly obtained) and the public’s interest in obtaining full information about proposed ballot measures by allowing the identify of supporters to be made public.
My sense is that this will be a very close case, likely splitting the so called liberal bloc in support of the State and so called conservative bloc in support of the Proponents with the decision coming down to Justice Kennedy’s swing vote. Questions at the argument may be telling. I will report on that after the transcript is released late next week.
