DOE #1 v. REED

Legal Principle at Issue

Does the First Amendment require strict scrutiny when a state compels the public release of identifying information about petition signers?

Action

Affirmed (includes modified). Petitioning party did not receive a favorable disposition.

Facts/Syllabus

The Washington state constitution allows citizens to challenge state laws by referendum. To initiate a referendum, proponents must file a petition with the secretary of state that contains valid signatures of registered Washington voters equal to or exceeding four percent of the votes cast for governor at the last gubernatorial election. A valid submission requires not only a signature, but also the signer’s address and the county in which he is registered to vote.

In May 2009, Washington Gov. Christine Gregoire signed into law Senate Bill 5688, which expanded the rights and responsibilities of state-registered domestic partners, including same-sex domestic partners. That same month, one of the petitioners in this case, Protect Marriage Washington, was organized as a “State Political Committee” for the purpose of collecting the petition signatures necessary to place a referendum challenging SB 5688 on the ballot. If the referendum made it onto the ballot, Protect Marriage Washington planned to encourage voters to reject SB 5688. Protect Marriage Washington submitted the petition with more than 137,000 signatures to the secretary of state, and after conducting the verification and canvassing process required by state law, the secretary determined that the petition contained sufficient signatures to qualify the referendum (R–71) for the ballot. 

By August 20, 2009, the secretary of state had received requests for copies of the R–71 petition from an individual and four entities, including Washington Coalition for Open Government and Washington Families Standing Together, two of the respondents here, who invoked the Washington Public Records Act to obtain copies of the petition, which contained the signers’ names and addresses.

The R–71 petition sponsor and certain signers filed a complaint and a motion for injunctive relief in federal District Court, seeking to enjoin the public release of the petition. The lawsuit alleged that the Washington Public Records Act “is unconstitutional as applied to referendum petitions,” and also that the Public Records Act “is unconstitutional as applied to the Referendum 71 petition because there is a reasonable probability that the signatories . . . will be subjected to threats, harassment, and reprisals.” Determining that the Public Records Act burdened core political speech, the District Court held that plaintiffs were likely to succeed on the merits and granted a preliminary injunction preventing release of the signatory information. The U.S. Court of Appeals for the Ninth Circuit held that plaintiffs were unlikely to succeed on their claim that the Public Records Act is unconstitutional as applied to referendum petitions in general, and therefore reversed.