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High court: Petitioners' names can be released

By Jesse J. Holland
Associated Press Writer / June 24, 2010

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WASHINGTON—People who sign petitions calling for public votes on controversial subjects don't have an automatic right to hide their names, the Supreme Court ruled Thursday as it sided against Washington state voters worried about harassment because they advocated repeal of that state's gay rights law.

The high court ruling against Protect Marriage Washington, which organized a petition drive for a public vote to repeal the state's "everything-but-marriage" domestic partnership law, says disclosure of the names of the signers of referendum petitions can generally be allowed under the Constitution.

The Supreme Court had blocked the release of the names until it could make a decision. In the ruling, the court says disclosing names on a petition for a public referendum does not chill the signer's freedom of speech enough to warrant overturning the state's disclosure law, which the state says allows the release of petition signatures.

Chief Justice John Roberts, writing the 8-1 judgment for the court, said it is vitally important that states be able to ensure that signatures on referendum petitions are authentic.

"Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures," Roberts said. "Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot."

Justice Clarence Thomas was the only dissenter.

Twenty-four states have some form of ballot initiatives, according the National Conference of State Legislatures, and more than half of them supported Washington state's position in this case.

Rob McKenna, the state's attorney general, called it a good day for "transparency and accountability in elections -- not just in Washington but across our country."

"We're pleased the Supreme Court ruled in favor of disclosure, upholding the public's right to double-check the work of signature gatherers and government -- and giving them the ability to learn which voters are directing the state to hold an election on a new law," McKenna said. "Citizen legislating is too important to be conducted in secret."

But Roberts also said that the court's opinion deals with whether disclosure of the names on referendum petitions in general violates the First Amendment. He added that Protect Marriage Washington could go back to the lower courts and try to prove that the release of their names would put them in danger.

"Upholding the law against a broad-based challenge does not foreclose a litigant's success in a narrower one," Roberts said.

One justice in the majority, Samuel Alito, seemed to suggest that such an argument might be successful.

"When speakers are faced with a reasonable probability of harassment or intimidation, the state no longer has any interest in enabling the public to locate and contact supporters of a particular measure -- for in that instance, disclosure becomes a means of facilitating harassment that impermissibly chills the exercise of First Amendment rights," Alito wrote.

But Justice Antonin Scalia said there already are laws against threats and intimidation, and "harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance."

Scalia said he does not look forward to a country that "exercises the direct democracy of initiative and referendum hidden from public scrutiny or protected from the accountability of criticism."

"This does not resemble the Home of the Brave," he said.

Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and the retiring John Paul Stevens also seemed skeptical.

"Even when a referendum involves a particularly controversial subject and some petition signers fear harassment from non-state actors, a state's important interests in 'protecting the integrity and reliability of the initiative process' remain undiminished," Sotomayor wrote.

The case now goes back to the lower courts for further arguments. McKenna said the names likely won't be released as the case winds its way back through the system. James Bopp, lawyer for Protect Marriage Washington, indicated the group would continue to fight disclosure.

"While we wish the court had agreed with us and found that petition signers speaking on any issue should be protected from having personal information disclosed to the public, we are looking forward to returning to Washington and showing the court that supporters of traditional marriage should have their personal information protected from disclosure," Bopp said.

The group lost when Washington state voters approved a law granting registered domestic partners the same legal rights as married couples, voting 53 percent to 46 percent.

In his dissent, Thomas wrote, "In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records severely burdens those rights and chills citizen participation in the referendum process."

The case is Doe v. Reed, 09-559.

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Associated Press writers Gene Johnson in Seattle and Rachel La Corte in Olympia, Wash., contributed to this report.