Conservative group doesn't sway Scalia in ballot signature case

McClatchy NewspapersApril 28, 2010 

WASHINGTON — Supreme Court justices from the left and the right expressed skepticism Wednesday at a conservative religious group's argument that Washington state should keep secret the names of 138,500 people who signed petitions in favor of letting voters decide whether to overturn the state's same-sex domestic partnership law.

James Bopp Jr., a lawyer for Protect Marriage Washington, argued that those who signed the petition to put Referendum 71 on the ballot would face harassment and intimidation from gay rights groups if their names were made public. Bopp argued that the signers' rights to privacy trumped the state's public records law.

Justice Antonin Scalia, the court's most conservative member, dismissed the arguments as "touchy-feely." "The fact is, running a democracy requires a certain amount of civic courage," he added.

Justice Ruth Bader Ginsburg, one of the court's more liberal members, said that even if the state withheld the names, they could become public because organizations that sponsored petitions sometimes sold or traded the names.

"They use them for fundraising purposes," she said. "So that would be the end of a person's privacy."

However the court rules, the case is likely to set legal precedent in a battle that pits openness in government against the right to take part in the political process without fear of intimidation.

The hearing marked the last oral argument for Justice John Paul Stevens, who's retiring at the end of the court's term in June.

Referendum 71 was an effort by conservative Christian organizations to repeal an "anything but marriage" law the Washington state legislature passed that expanded partnership rights to same-sex couples. The November 2009 referendum asked voters to approve or reject the law. Voters upheld it.

Under Washington state's Public Records Act, the names of those who signed the petition are public information, but Protect Marriage Washington filed a lawsuit in federal court that sought to keep the names secret.

A district court granted the injunction, but the 9th U.S. Circuit Court of Appeals overturned that ruling. Protect Marriage Washington appealed to the Supreme Court. The names of those who signed the Referendum 71 petitions haven't been released.

"No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and private associations," Bopp said as he began his oral arguments.

It may have been one of the few full sentences he spoke without interruption, as Scalia interrupted him immediately.

Justices wanted to know whether if they blocked the release of the names in this case, it then would apply to releasing voter registration rolls or the names of campaign contributors.

Chief Justice John Roberts Jr. suggested that the court may have to differentiate between releasing the names of people who signed a controversial initiative or referendum petition and those who signed a noncontroversial one such as raising the debt ceiling.

"You are not going to get a crowd outside your house because you signed that petition," Roberts said.

Scalia badgered Bopp the most, though.

"You know, you can't run a democracy this way, with everybody being afraid of having his political positions known," said Scalia, who at one point confused Washington state with California. "And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate or take part in the legislative process.

"You are asking us to enter into a whole new field where we have never gone before."

Washington Attorney General Robert McKenna argued in favor of releasing the names. He said there'd been no evidence of intimidation or harassment, and he cited similar initiatives in Arkansas, Florida and Massachusetts, where petition signatures were released without incident. McKenna said there was no history in Washington state of harassment of those who'd signed controversial petitions, including a recent assisted-suicide initiative.

In releasing the names, McKenna said, state government was allowing the public to review a petition for fraud or error and to determine who might be behind it. "That goes to the heart of the Public Records Act: Trust but verify," McKenna said.

In a hypothetical question, however, Justice Stephen Breyer asked McKenna what would have happened in 1957 in Little Rock, Ark., if a group of citizens wanted to put a petition on the ballot that required the school board to reopen Central High School, which was closed because the community refused to integrate it.

Breyer said that there was a "good chance" that people who signed that petition would be intimidated or harassed and even have their businesses bombed. Breyer wanted to know whether there was a First Amendment right to protect those people.

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