FYI: U.S. District Judge Benjamin Settle has ruled that Washington state will continue to be blocked from releasing Referendum 71 signatures while challengers mount a federal court case that aims to keep the 138,000 names confidential forever. In a brief hearing in his courtroom in Tacoma on Wednesday, the judge rejected the state’s request to release the signatures as required under the state’s public records act, but did agree to the Secretary of State’s request to an expedited hearing schedule.
The challengers, Protect Marriage Washington, will release a list of its witnesses so the Attorney General and other backers of public release will be able to do discovery. Both sides will then submit briefs and a trial will proceed as scheduled by the court, possibly in November.
Shane Hamlin, assistant state director of elections, said he disappointed the judge ruled against the release of the signatures but was pleased that the court is putting the case on a fast track. The state strongly objected to maintaining the temporary restraining order, arguing there is no current showing of a risk of harm to anyone therefore the public records should be released. However, the judge said to have released the petitions now would have made the whole case moot.
Last September, Judge Settle approved Protect Marriage Washington’s initial request for the ban on releasing R-71 petitions, based on his view that release could violate signers’ First Amendment rights of anonymous free speech. Reed and Attorney General Rob McKenna appealed, asserting that no constitutional rights are abridged and that the voter-approved Public Records Act requires release of all records that have not been specifically exempted by the Legislature.
The 9th Circuit Court of Appeals concurred, and overturned Settle. Protect Marriage Washington, represented by conservative legal activist James Bopp Jr., persuaded the U.S. Supreme Court to take the case. In an 8-1 ruling on June 24, the high court said that as a general proposition, disclosure of petitions does not violate the Constitution. But the court also left open the option for challenge of release of specific initiatives and referenda, giving sponsors a chance to assert that disclosure would lead to harassment or harm to signers. The court sent the Doe v. Reed case back to Judge Settle to consider such a challenge.