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Originally published December 29, 2009 at 10:01 PM | Page modified December 29, 2009 at 11:46 PM

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Supreme Court to decide soon on Ref. 71 signature case

The U.S. Supreme Court will decide in mid-January whether it will consider the thorny issues surrounding public release of 138,000 signatures collected this summer as part of Referendum 71 — a question sure to arise more frequently as technology makes it easier to publicize the identities of those who sign such measures.

Seattle Times staff reporter

The U.S. Supreme Court will decide by mid-January whether to consider the thorny issues surrounding public release of 138,000 signatures collected this summer as part of Referendum 71.

John Doe vs. Sam Reed could well determine once and for all whether Washington's Public Records Act, which seeks transparency of all government records, violates the First Amendment rights of voters who sign ballot petitions.

The high court will decide at a Jan. 15 meeting whether to accept or reject the case and then announce later that day — or the following Monday, Jan. 18 — if it will hear arguments.

If justices take the case, attorneys representing the state and Protect Marriage Washington, which brought the original lawsuit, will likely argue before the court in April, with a decision likely by the end of June.

If the Supreme Court decides not to hear it, a 9th U.S. Circuit Court of Appeals decision allowing release of the names will take effect, according to the Secretary of State's Office.

With 27 states having either referendum or initiative processes, questions surrounding privacy rights of those who sign petitions for such ballot measures are almost certain to arise more frequently as technology makes it easier to publicize their identities.

"This is an important question of law that has not been, but should be, decided by this Court," Protect Marriage wrote in filings before the U.S. Supreme Court.

Deputy Solicitor General William Collins of the state Attorney General's Office urged the high court not to take the case, saying several states allow release and that this kind of First Amendment challenge is only now arising — an indication there is no important national question to be resolved.

Protect Marriage, a conservative religious organization, had sought through Referendum 71 to put a measure expanding the state's domestic-partnership law to a public vote in the hopes that voters would throw it out.

That effort failed when 53 percent of voters in November approved the law's expansions.

In its lawsuit, filed in U.S. District Court in Tacoma, the group sought to block release of the names of people who signed petitions to place the referendum on the ballot, saying that disclosing their names would violate signers' First Amendment rights to anonymous free speech. Protect Marriage filed the suit in July, not long after a gay-rights activist group called whosigned.org announced it would post the names on a searchable database online.

Among other claims, Protect Marriage said the state's Public Records Act chills free speech and that the state lacks a compelling public interest in releasing signers' names. The suit also says that releasing the names would subject signers to harassment and reprisals.

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All along, the state has maintained that petition signers waive any First Amendment protections when they act as quasi-legislators in putting measures up to a public vote. The Public Records Act, the state maintains, preserves the integrity of the election process by providing accountability and transparency.

But U.S. District Judge Benjamin Settle, saying the state hadn't proved its claims, sided with Protect Marriage Washington when he blocked Secretary of State Sam Reed from releasing the names.

The state appealed to the 9th Circuit, which reversed Settle's decision.

But the U.S. Supreme Court stayed that ruling and upheld Settle's until it could consider whether to give the case a full hearing.

Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com

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