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UPDATE: Plea for petition signers’ privacy

UPDATE 2:55 p.m.  Justice Anthony M. Kennedy on Monday afternoon put back into effect, temporarily, a federal judge’s order that protects the privacy of signers of a petition seeking a voter referendum on a gay rights law in Washington State.  He did so, however, only until a further order is issued by himself or by the Court; the order is here. Kennedy acted on the basis of the application, before getting a response, due this afternoon, from state officials.  FURTHER UPDATE 5:50 p.m.  The state officials’ response is now in; it can be found here.


Supporters of a ballot measure asking Washington State voters to veto a new state law on benefits for gay couples who enter “domestic partnerships” have asked the Supreme Court to protect the privacy of individuals who signed petitions to get the issue on next month’s election ballot.  The application, filed with Justice Anthony M. Kennedy, is John Doe, et al. v. Reed, et al. (09A356); it can be found here.  Kennedy has sought a response from state officials by this afternoon.

The dispute raises a series of constitutional questions: is signing a petition to get an issue on the ballot a form of political speech protected by the First Amendment; is the petition-signing process a “public forum,” so that signers have forfeited any privacy right; does a state have a valid reason for publicly disclosing who supports a referendum?  At this stage, the case does not involve the legality or constitutionality of the domestic partnership law that Washington’s governor signed in May.  Sufficient signatures have now been filed to refer that law to the state’s voters at the Nov. 3 election, as Referendum 71.

Washington Gov. Chris Gregoire on May 18 signed into law a bill to make the rights and obligations of couples who register with the state as “domestic partners” equal to those of married spouses.  Even before the law was signed, a group named Protect Marriage Washington began circulating a petition to put the law before the voters. Proposition 71 asks voters to either accept to reject the new law.  Under the Washington state constitution, voters have reserved the power to reject any law through the referendum process.

In September, U.S. District Judge Benjamin H. Settle temporarily barred state officials from releasing the identities of those who signed the referendum petitions.  The disclosure was sought by groups named,, and the Washington Coalition for Open Government; their plea was based on the state’s public records act.  Those groups have said the signers should be identified so that the public knows who is behind Referendum 71, and so that those supporters can be challenged personally.

Judge Settle’s temporary injunction was itself blocked last Thursday by the Ninth Circuit Court.   The Circuit Court panel said only that Judge Settle had relied on “an incorrect legal standard.” It said, however, that it would issue “expeditiously” an opinion explaining its action.

In asking Justice Kennedy to put back into effect the bar disclosure of the signers’ identities, Protect Marriage Washington argued that state officials have suddenly changed a long-standing practice of keeping confidential the identities of those who signed referendum petitions.  The group said the signers fear hostile confrontations, and noted that their campaign manager had received death threats.  The application contends that there is no compelling state interest in forcing the disclosure of these identities.

Justice Kennedy has the authority to act on the application himself, or to refer it to his colleagues for joint action.