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The Herald of Everett, Washington
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Published: Tuesday, October 13, 2009, 12:01 a.m.

R-71 signature case likely to spill past election

The last word on whether petitioners’ names should stay secret is unlikely to be decided before Election Day.

OLYMPIA — Voters likely won’t know who signed the petitions on Referendum 71 before the Nov. 3 election as the fight continues in court to keep the names secret.
That’s disappointing to those who wanted to post those identities online before ballots are cast on the controversial measure that would give marriagelike benefits to several thousand same-sex couples in Washington.
But those pressing to make the names public, who want the referendum approved, say their efforts have spurred debate among voters and could bring change to the state’s election process.
“This is going to be a little painful to not be able to publicize on our timetable,” said Brian Murphy of WhoSigned.org, who announced in June his intention to get signers’ identities online. “In the long run, this is part of a much bigger picture. If I ultimately get the names will I post them? Yes.”
On Wednesday, a three-judge panel of the 9th Circuit Court of Appeals will hear arguments in the case aimed at keeping the state from publicly releasing names of the 138,000 signers who qualified the measure for a vote.
Even if the panel rules quickly, further appeals are expected, and they would push a final outcome past Election Day.
“I think it’s highly unlikely” the case can be resolved before ballot counting begins, said Stephen Pidgeon, the Everett attorney representing the petition’s sponsors, Protect Marriage Washington.
Referendum 71 asks voters to approve or reject a law passed earlier this year expanding rights for the state’s 6,119 registered domestic partnerships, most of whom are same-sex couples. The law also covers unmarried heterosexual couples if one partner is at least 62.
The “everything but marriage” law, which would take effect if voters approve it, will make registered partnerships legally indistinguishable from married couples in Washington.
Protect Marriage Washington, led by Larry Stickney of Arlington, initiated the legal fight to keep names of petition signers secret.
The group contends those individuals enjoy a First Amendment right to participate in this manner anonymously to protect them against harassment by their opponents. Pidgeon has said signers have received threats on the phone, in e-mails and in written commentaries online.
State lawyers contend the petitions are public records whose disclosure provides necessary transparency in the electoral process by letting the public know who is behind ballot measures.
A federal judge in Tacoma ruled against the state and barred release of the names. That decision is the subject of this week’s appellate hearing.
The Secretary of State’s Office is ready to distribute the names if the lower court ruling is overturned. However, any decision by the appeals panel is likely to be challenged, thus keeping such a window of opportunity from getting opened.
“It’s upsetting, but it’s inevitable. It’s beyond our control,” said Tom Lang, a director of Massachusetts-based KnowThyNeighbor.org.
The group was created in 2005 in response to an initiative drive to ban same-sex marriage in Massachusetts. Lang helped post names of 148,000 signers, a tactic that helped unearth some invalid signatures while mobilizing gay rights activists.
Since then he’s helped launch similar name disclosure drives in Florida, Oregon and Arkansas as well as WhoSigned.org in Seattle.
Lang and Murphy expected the legal fight to occur whether they went public in June or not.
Pidgeon disagreed. By announcing their plans, it demonstrated their intent to intimidate people from signing, he asserted.
“It would have been very, very difficult for us otherwise,” he said. “Certainly the cat would have been out of the bag and it would have been very hard to get the cat back in the bag.”
Murphy and Lang said lawyers for petition sponsors would have gone to court regardless. And Murphy said it would have been hypocritical to be silent about their plans.
“It would be difficult for me to talk about transparency if I wasn’t transparent,” he said. “No matter which way we’d gone, we’d have ended up in the same situation.”

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