Friday, January 8, 2010

Doe v. Reed, 586 F.3d 671 (9th Cir. 2009); Affirmed in S.Ct, 130 S.Ct.2811 (2010)

The Washington State Legislature enacted legislation extending rights and responsibilities to state registered domestic partners. In response, voters signed petitions to submit the legislation to a referendum. Several opposition groups sought disclosure of all the names of those who had signed the petitions. Washington law provides a Public Records Act (PRA) mandating disclosure of signatories who signed petitions in support of a referendum. To assure the integrity of an election or petition for referendum, Washington criminal law also prohibits anyone from using a false name in voting; or is not a legal voter; or otherwise makes a false statement in signing a petition. Washington statutes also provide a method for voter certification of signatures by the Secretary of State and an appellate process seeking review of the administrative decision on the integrity of ballots or petitions. Plaintiffs filed a Complaint in U.S. District Court seeking an injunction against enforcement of the PRA. In Count I of the Complaint, plaintiffs alleged disclosure of signatories to the petitions violated the First Amendment "because the PRA is not narrowly tailored to to serve a compelling public interest." Count II alleged the PRA is unconstitutional because "there is a reasonable probability that signatories of the petitions . . . will be subject to threats, harassment, and reprisals." In support of that allegation, plaintiffs alleged various groups have "publicly stated they intend to publish the names of signatories on the Internet . . . and have encouraged individuals to contact petition signers to have 'personal' and 'uncomfortable' conversations." The District Court ordered injunctive relief in accord with the conventional test of finding the plaintiff likely to succeed on the merits; likely to suffer irreparable injury in the absence of an injunction; balance of equities in its favor; injunction in the public interest. The State (and other defendants) appealed. The Ninth Circuit ignores the court order for injunctive relief entirely, despite the trial judge's obvious finding the plaintiffs would suffer injury. The Ninth Circuit panel reversed on the ground the trial judge used the wrong legal test for allegations of First Amendment violations. The Ninth Circuit reversed Count I as the District Court had ruled only on that count. After concluding the PRA is subject to "intermediate scrutiny" under First Amendment analysis, the court asks rhetorically what government interests are furthered by the PRA. Twofold, according to the court: to preserve the integrity of the election and "providing Washington voters with information about who supports placing a referendum on the ballot." The court cites no authority for this latter "public interest" and it is patently without precedent. The purpose of assuring the integrity of an election or validity of petitions for a referendum identified in the above statutory requirements is prevention of fraud and assurance no false names or statements are counted in the ballots or petitions. Nothing in the the court's rationale to allegedly "inform the public about who supports the referendum", validates the need for disclosure. This supposed rationale is directly contradicted by the allegations of the Complaint that disclosure is sought to threaten or intimidate signatories, not to inform the public. The court is further confronted with another Washington statute allowing various interested parties to observe the Secretary of State staff processing the names of "qualified voters" who signed the petitions "so long as observers make no record of the names, addresses, or other information on the petitions or related records during the verification process." In other words, the Washington statute specifically prohibits observers of the certification process from recording any names on petitions. According to the Ninth Circuit, this Washington statute is not controlling because the alleged demands for disclosure of "who is qualified" to sign petitions are insufficient to provide "information about who supports placing a referendum on the ballot." But the defendants are not concerned about qualified voters. They want disclosure to fulfill their publicly announced interest to confront signatories. Fortunately, this erroneous judicial Ninth Circuit interpretation of First Amendment Constitutional law and Washington state law has been stayed by the Supreme Court. Buried in the footnotes of Doe v. Reed, the Ninth Circuit panel notes that its decision was stayed by Justice Kennedy who referred his decision to the entire Court-which confirmed the stay. A question: Suppose the plaintiffs were a minority group. They alleged their supporters would be threatened by disclosure. Would the Ninth Circuit issue the same rule as Doe v. Reed? Or this: Assume State legislation mandates proof of identification (disclosure) by voters before voting in an election. The Supreme Court approved that state legislation in Indiana; Crawford v. Marion Co. Election Bd., 533 U.S. 1811 (2008). Had that case been before the Ninth Circuit instead of the Supreme Court, the result would have been different.

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