Ref. 71 signatures are public, Supreme Court rules

Even though the U.S. Supreme Court has upheld Washington's law that says ballot-measure petitions are public records, the drawn-out battle over whether to release Referendum 71 petition signatures is not over.

The high court ruled Thursday in an 8-1 decision, with Justice Clarence Thomas dissenting, that disclosing the identities of petition-signers does not, generally, violate the First Amendment.

But the justices also said their decision "does not foreclose success" should Ref. 71 sponsors decide to pursue an exemption in a lower court — which the sponsors said they will do.

Those who want to keep Ref. 71 signers' names confidential now will have to prove in U.S. District Court that there is "reasonable probability" that disclosing the names will lead to threats, harassment and reprisals.

That's "a high standard to meet, and they just don't have the evidence to meet it," contended Washington Attorney General Rob McKenna, who argued the case on behalf of the state in April.

Ref. 71, sponsored by Protect Marriage Washington, unsuccessfully sought to repeal a 2009 state law granting expanded, marriagelike benefits for gay and lesbian couples registered as domestic partners.

McKenna called Thursday "a good day for transparency and accountability in elections," saying that "citizen legislating is too important to be conducted in secret."

But James Bopp Jr., the lead attorney for Protect Marriage Washington, said "supporters of traditional marriage have been subject to death threats, vandalism, and even the loss of their jobs" in Washington, California and elsewhere. "We are confident that the District Court will agree that these tactics have no place in the discussion of marriage and will prevent the release of the personal information."

What the justices said

The Supreme Court ruling in the Doe v. Reed case comes after nearly a year of legal wrangling over Ref. 71.

In the months leading up to the November elections, when voters opted to keep the expanded benefits law, a gay-rights advocate said he would request — as permitted under the state's Public Records Act — the names of those who signed petitions to get the referendum on the ballot. He said he would post the information on a searchable website.

Protect Marriage Washington filed suit to keep the names private, saying disclosure would scare supporters away from exercising their free-speech rights.

The question that worked its way up to the Supreme Court was focused only on the broader issue of whether it's constitutional to disclose the identities of signers of all ballot-measure petitions, not just Ref. 71.

It left unanswered the narrower question of whether it's constitutional to release the names in the case of Ref. 71 specifically, given that sponsors fear disclosure may lead to harassment. That question is what will come before a U.S. District Court.

The justices' opinions Thursday offers the sponsors some hope that they could prevail in lower court — though not a lot.

Chief Justice John Roberts, writing for the majority, said the state has a strong interest in guarding against election fraud and rooting out invalid signatures on petitions — an interest that defeats the argument that petition disclosure is unconstitutional in all cases.

But he also said "upholding the law against a broad-based challenge does not foreclose a litigant's success in a narrower one."

The court also ruled that signing a ballot petition is political expression and that requiring disclosure of signatures can be subject to First Amendment review.

Most of the justices expressed some doubt about the argument that in the case of Ref. 71, the fear of possible harassment should override the state's disclosure law.

Justice Sonia Sotomayor, in a concurring opinion joined by Justices John Paul Stevens and Ruth Bader Ginsburg, wrote that "even when a referendum involves a particularly controversial subject and some petition signers fear harassment," a state's important interest in protecting the initiative process remains undiminished.

Stevens, in a concurring opinion joined by Justice Stephen Breyer, said: "Any burden on speech that petitioners posit is speculative as well as indirect."

Justice Samuel Alito, though, in his concurring opinion, seemed to find the argument that Ref. 71 signers would be subject to intimidation persuasive, and the state's interest in compelling disclosure inadequate, saying courts "should be generous" in granting exceptions to disclosure in such cases.

Thomas, the sole dissenter, wrote that the Public Records Act, which subjects all referendum and initiative petitions to public disclosure, is unconstitutional because there are less restrictive means to preserve the integrity of elections.

The Seattle Times was among 22 news organizations and media trade associations that filed a brief in the case supporting public disclosure of the petitions.

What's "reasonable probability"?

Stewart Jay, a First Amendment expert at the University of Washington School of Law, said he believes the plaintiffs could be successful in demonstrating that they have a "reasonable probability" of being subjected to harassment.

But Jay also said the high court, as is typical, provided only vague guidance for the lower courts.

Eugene Volokh, a First Amendment expert at the University of California, Los Angeles, said that while the Supreme Court has allowed for case-by-case exemptions to disclosure, "nobody knows exactly how high" the standard for "reasonable probability" is.

"It's very very hard to figure out just what the likelihood of harassment is going to be," he said. "And even if we do figure it out, we don't know for sure what the threshold is for the amount of harassment that would justify an exemption from the disclosure requirement."

Bopp, the attorney for Protect Marriage Washington, says that he can hardly demonstrate that Ref. 71 petition signers have been harassed since their names haven't been released.

But he will argue that there's a reasonable probability of harassment based on what happened in California. There, he says, people whose names were posted online as campaign contributors to Proposition 8, a 2008 ballot issue that banned gay marriage in California, were victims of threats, vandalism or harassment.

Tom Lang with knowthyneighbor.org, a gay-rights group that has posted names on the Internet, said that harassment has not resulted from the posting of identities of those against gay-rights ballot measures in Massachusetts, Florida and Arkansas.

And in Washington state, the names of donors to the Ref. 71 campaign — not petition-signers — have been public for months now. While the Ref. 71 campaign chairman and some top lieutenants have brought forward allegations of threats and harassment, "that's not the standard," Attorney General McKenna said.

"The issue is whether the average petition signer has a legitimate fear of threats, harassment or reprisals," he said. "And there just hasn't been evidence presented to date that that was the case."

In any case, the Ref. 71 names are not immediately available, as the Supreme Court decision is not final for 25 days.

A Thurston County judge also must lift an injunction he issued banning the release of all voter petitions, pending the Supreme Court decision. McKenna said the state would ask the judge to lift the injunction.

Janet I. Tu: 206-464-2272 or jtu@seattletimes.com