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Court to rule on petition-signers’ rights

The Supreme Court on Friday added five new cases to its decision docket, including a significant test case on a plea for confidentiality for the identities of voters who sign petitions to get policy measures on election ballots.  The Court expedited the briefing of all five cases, thus giving the Justices the option of scheduling all of them for oral argument in the April sitting.  There is no commitment to April arguments at this time, however.

The Court’s vote to hear the case of Doe No. 1, et al., v. Reed, et al. (09-559) marked the second time this week that the Court opted to act on controversies involving gay rights opponents’ claims that publicity about their political activity has led to threats and even some violence against them.  On Wednesday, the Court shut down a plan to televise the federal court trial challenging California’s ban on same-sex marriage, displaying concern for the potential effect on supporters of that ban when they appear as witnesses at the trial.

The new case involves an effort to bring out in public the identities of individuals in Washington State who signed petitions to put on the state election ballot a referendum that would overturn a new state law extending the benefits of marriage (but not marriage itself) to couples registered as “domestic partners.”  (That referendum failed, and the law remains in effect; voters approved the new law by a 53-47 percent margin last November.)

In taking the Washington case to the Court, the petition-signers’ lawyer said the confidentiality issue “is arising with great frequency across the country as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation.”  One group, the filing said, has posted on its web site information about gay marriage petition-signers in Arkansas, Florida, Massachusetts and Oregon.

The outcome of the case could affect publicity about petition-signers in the 27 states that have either an initiative or a referendum option for voters, or both.  The core constitutional issues in the case are whether signing a ballot measure petition is a form of political speech, whether, if it is protected by the First Amendment, it includes a right to sign without official public disclosure, what standard is to be applied when judging regulation of such a First Amendment right, and what government interest supports disclosure rather than confidentiality for signers’ identities.

The Washington State law that was petitioned to the November ballot was signed by the governor last May 18.  The bill extended to registered domestic partnerships in the state all of the legal rights that married couples have, but did not authorize same-sex marriage, as such.  Groups that support transparency in political activity have sought access to the information, under the state’s open records law, in order to publish the identities of those who supported the referendum measure.

The Court’s argument calendars through March are now set, so argument in any of the new cases, if it is to occur this Term, would come in the session that begins April 19 — the last argument session of the Term.  In each of the new cases, the opening brief is due Feb. 25, the opposition brief March 25, and reply briefs under the normal Rules of the Court.

Here, in brief, are the issues at stake in the other four granted cases:

** Krupski v. Costa Crociere (09-337) — scope of the right to file an amended lawsuit to correct a mistake in a party’s identity.

** Hardt v, Reliance Standard Life Insurance (09-448) — who may recover attorneys’ fees in a lawsuit seeking to enforce the Employment Retirement Income Security Act of 1974.

** Rent-A-Center West v. Jackson (09-497) — arbitrator’s power to decide whether an arbitration agreement is “unconscionable”.

** Monsanto Co., et al., v. Geertson Seed Farms, et al. (09-475) — legality of a nationwide order against further planting of a genetically-engineered crop, when a lesser measure could eliminate any environmental harm.  The Court granted review over the objection of the federal government, which argued that the Ninth Circuit Court had been wrong in upholding the injunction, but had spelled out the correct legal standard, and, besides, lower courts were not in dispute about it. Justice Stephen G. Breyer took no part in the Court’s action on this case.  His brother, Charles, a federal District judge in California, issued the order that is being challenged in this case.   (The case involves a variety of alfalfa created to deal with problems caused by weeds in farm fields where the crop is grown.)