Protect Marriage Washington, which is appealing the Doe v. Reed ruling that upheld release of Referendum 71 petitions, has filed an emergency motion with the 9th Circuit Court of Appeals to halt further release of the petitions while the appeal proceeds.
The State Archives in the Office of Secretary of State already has released more than 30 sets of the 137,000 signatures, and has two more pending. But on advice of counsel, further releases are suspended until the court considers the emergency motion on Monday. State Attorney General Rob McKenna’s office is preparing a brief today and James Bopp Jr. and attorneys for Protect Marriage Washington have until the end of the day to submit a rebuttal.
Secretary of State Sam Reed said the state will ask the appeals bench to permit continued release of the records, noting that a number of CDs are already in public circulation following the state’s victory in U.S. District Court on Monday.
Protect Marriage Washington, part of a national movement opposed to same-sex marriage, sponsored R-71 in 2009 to force a public vote on a newly approved “everything but marriage” law that expanded domestic partner benefits for gay couples and heterosexual couples where one partner is at least 62. Voters upheld the law 53 percent to 47 percent. As of today, there are 9,402 domestic partnerships registered with our office.
After qualifying for the ballot, PMW successfully blocked public release of the petitions, based on contention that signers would be harassed, intimidated or injured. The case went all the way up to the U.S. Supreme Court, which issued an 8-1 decision that release does not violate First Amendment rights. The high court did leave open the possibility of “as-applied” challenges in particular controversial cases where sponsors could try to show that release would likely lead to retaliation against signers. Earlier this week, U.S. District Court Judge Benjamin Settle in Tacoma held that PMW had not made their case, and said release would be permitted.
Washington treats initiative and referendum petitions as releasable under the voter-approved Public Records Act. Secretary Reed and Attorney General McKenna said signing petitions is a public act of citizen legislating, not a private act such as voting. They said voters have a right to know who is attempting to legislate, and to double-check the state Elections Division’s review of petitions to determine if there are sufficient numbers of valid signatures to get on the statewide ballot.
In a related development, Protect Marriage.com and the National Organization for Marriage have lost their effort to block California Proposition 8 donors’ names from public view because of alleged harassment. Campaign finance records for Referendum 71 have been online for more than two years, without apparent incident.