Saturday, January 16, 2010

Clarification On R-71 Supreme Court Case

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In talking with several in the Seattle and national media, I have become aware that since it was announced that the US Supreme Court will hear our case in the matter of R-71, there are those who are now publishing stories that either claim or suggest that we are somehow trying to circumvent public disclosure laws and are part of a national coalition to do so.

Neither is true. We are addressing one issue and that is a freedom of speech issue.

I personally believe in full disclosure. However, we believe that just as an individual's vote should be confidential, so should their signature on a referendum or initiative, because that process is a part of the voting process.

We are not addressing any area of financial disclosure.

This story has already become a national story and it's outcome will have national impact.

Some may ask, what if we prevail, then Christians and conservatives will not have access to the names of those who sign petitions on issues we do not agree with. Homosexual activists have a record of intimidation and in some cases, harassment. This has played out in California during and following Prop. 8, in several other states that have considered defense of marriage legislation and certainly here in Washington during R-71.

We don't care to have access to the names of those who sign pro-homosexual or pro-abortion referenda or initiatives. We don't believe so-called "contacting" people because of the way they voted or because they signed a petition that provides an opportunity to vote is appropriate under any circumstances.

Apparently, the US Supreme Court feels that our case has enough merit to hear and consider.

Freedom in voting is worth the effort.

God bless you. We'll keep you posted.

Gary Randall
Faith & Freedom


Friday January 15, 2010
Contact: James Bopp, Jr.
Phone: 812/232-2434; Fax: 812/235-3685;

U.S. Supreme Court Agrees to Hear Washington Case on Release of Petition Signers

Today, the Supreme Court of the United States agreed to hear a case that asks it to decide whether the Washington Secretary of State may release the names, addresses, and other personal information of over 138,000 individuals who signed a referendum petition seeking to protect traditional marriage in Washington.

As seen in Washington, California, and across the country, when an election involves traditional marriage, the availability of personal information on the internet has led to the harassment and intimidation of those who support traditional marriage. Those supporting traditional marriage have been subject to death threats, physical violence, and property damage because of laws requiring the personal information of supporters of traditional marriage to be made available on the internet. Protect Marriage Washington, the group that asked the Court to hear this case, is seeking to prevent the release of the personal information of the individuals who signed the referendum petition to protect traditional marriage in Washington, and uphold the right of Washington citizens to speak freely without fear of harassment or intimidation.

James Bopp, Jr., lead counsel for Protect Marriage Washington, stated, "We are pleased that the Supreme Court has agreed to hear this case that seeks to protect the rights of citizens who support a traditional definition of marriage to speak freely and without fear. No citizen should ever worry that they will be threatened or injured because they have exercised their right to engage in the political process. The First Amendment protects citizens from being required to disclose their identity when they are engaged in political speech. The Supreme Court seemed to see the importance of hearing this case prior to the November 2009 elections when it stayed the release of the names at that time, and we look forward to their review of the case."

On September 10, 2009, the U.S. District Court for the Western District of Washington issued an order preventing the release of the names of the petition signers. On October 15, 2009, the Ninth Circuit issued a single page order allowing the release of the names. On October 20, 2009, the Supreme Court prevented the release of the names prior until it could consider this case. These documents, as well as the petition asking the Court to hear this case, are available on the Madison Center website,, under the "Washington Referendum 71 Petition Suit" heading.

James Bopp, Jr. has a national federal and state election law practice with the law firm of Bopp, Coleson & Bostrom in Terre Haute, Indiana. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.


  1. Have there been any charges filed in the alleged "death threats" against R-71 proponents? If these are actually legit "death threats", which are illegal than charges will have been filed, otherwise FFN should stop referring to rude postings as "death threats".

    Also, while this specific case does not involve disclosure of donors, that is most certainly part of FFN's agenda. Your side tried and failed to hide the names of campaign donors as well as those citizens choosing to act as legislators by signing referendum petitions.

  2. I've been looking through the RCW on petitions, and I don't see where the actual list of signers is designated either public information or not. It appears to be kind of a gray area. (If I'm wrong and it's definitively stated, would someone please tell me where I can find it?)

    Nevertheless, it seems to me that this is an area where strict compliance with the law should be observed, to the point of conceding the gray area until it can be resolved in the legislature. We don't want to give the gay brownshirts any excuse for questioning the legitimacy of the referendum.

    I signed the thing, so my name will presumably be on the list, but then, I live in an area that simply doesn't have enough homosexual presence to muster up a good lynch mob. I understand that there are plenty of people on the west side who are a lot more vulnerable to harassment.

  3. Addendum to my last comment: The nearest the RCW appears to get to addressing the question is in 29A.72.230:
    Upon the filing of an initiative or referendum petition, the secretary of state shall proceed to verify and canvass the names of the legal voters on the petition. The verification and canvass of signatures on the petition may be observed by persons representing the advocates and opponents of the proposed measure so long as they make no record of the names, addresses, or other information on the petitions or related records during the verification process except upon the order of the superior court of Thurston county. (Emphasis mine.)

    This implies that the signatures aren't to be disclosed by members of the general public, but a strict reading would limit that restriction to the actual observers, and leave everybody else who wasn't an observer without any such restriction. The case appears to be a lot less cut-and-dried than I had thought.

    Of course, I'm a newspaperman, not a lawyer. Can someone with more knowledge of the law shed some light on it?

  4. Just a thought: I'd be willing to consider the release of the names if the following conditions are not just stated but meaningfully enforced:
    1: the names and addresses of all who support disclosure are disclosed as a preface to the disclosure of R71 signers;
    2: if anything happens to any of the signers, all who supported disclosure (except AG McKenna and SecState Reed) are jointly and severally deemed liable for (civil law) and guilty (criminal law) of (a) whatever happened to the signer and (b) violating the corresponding hate-crime laws, and they waive their right to any trial, appeal, plea-bargaining, suspension of sentence, etc;
    3: all legislation protecting sexual orientation (eg ENDA, hate crimes amendments, etc) are repealed and any arrest/conviction of a conservative under those statutes is not only reversed but jointly/severally transferred to the accuser and those who supported disclosure.
    It is the height of hypocrisy for a group to simultaneously (a) claim a need for protection from threats and (b) make even bigger threats, even physical threats. The supporters of disclosure (except AG McKenna) have a consistent track record of not just making violent threats but also of carrying out violence and public disruption and hate speech. There is much more of a link between disclosure supporters and violent perpetrators, than there is between (the often-used example) pro-lifers and the few but oft-discussed violent anti-abortion agents. I have seen no action from the pro-gay-rights side (including the Democratic party and those media who have editorialized for gay rights, except reputedly the Seattle Times) to condemn or prevent action against signers, and there's no other way to interpret this than tacit support for anti-signer violence.

    Disclosing signers is equal to disclosing voting records. As such, the argument of "Gary's side could lose the ability to track pro-gay or pro-abortion signers" fails because we respect the secrecy of voting and have no wish to identify our opposition voters/signers (point 1 above is rhetorical to disclose the hypocrisy of the pro-disclosure side, who I believe sued in the mid-90s to prevent their own signatures from being disclosed).

    K, Kirkland

  5. Joel is right in that the public disclosure law does not directly address this. The law, as I understand it, generally required disclosure of public records unless a particular exception applies.

    There is one useful analogy: Lists of registered voters, along with their addresses, are subject to disclosure. The Republican party has, in the recent past, used those lists to verify voter registrations, and challenge registrations that are suspect. I think the same information from a petition is also subject to disclosure. (The signatures themselves,however, should not be disclosed. Signatures are for verification purposes and disclosure may aid in identity fraud).

    There is a valid reason to support disclosure. Say that Planned Parenthood and NARAL sponsored a "freedom of choice" initiative and there were allegations of unseemly signature-gathering practices. (Or, if you prefer, the unions sponsor an initiative to reduce the sales tax and enact an income tax on annual income higher than $50,000) Let's say that signature gatherers were openly misrepresenting the initiative as one that would limit abortion (or as a tax cut). Or let's say that some signature gatherers were alleged to have forged some of the signatures. The initiative promoters turn in 265,000 signatures - and the secretary of state declares that it qualifies for the ballot (albeit with a narrow margin) Should interested groups be able to access the names, through the public disclosure process, to independently verify the signatures? Or would you take the word of the secretary of state?

    That's like saying the Republican party does not have the right to independently check voter registration lists after a massive (fraudulent) voter registration drive by ACORN.

    Instead of doing away with transparency, let's increase the penalty for harassment (i.e. threats, vandalism, etc) of a person who signed a petition. Make it a felony. If the Legislature won't do it, start an initiative on THAT issue and I think it will pass. Establish hotlines and websites where harassment can be reported.

    Transparency is the price of democracy. Doing away with public disclosure will, in the long run, be of greater benefit to organizations like the SEIU and NARAL than to persons seeking to avoid harassment.

  6. k in Kirkland,

    And who says the Christian right isn't looking for special rights? You want prosecution without trial under hate-crimes laws against anyone supporting open records laws - yet demand that the portion of hate crimes law covering sexual orientation be summarily repealed. In other words YOU want special rights!

    Also, you have presented zero evidence to support your claim that those in favor of public disclosure laws support alleged threats and violence against anti-gay activists. To do so you have to ignore the masses of arguments for disclosure that state that anyone harassing signors should be prosecuted to the fullest extent of the law. Speaking of prosecuted to the fullest extent of the law, just where are the prosecutions for this alleged harassment, death threats and violence against anti-gay activists? If there were any FFN would be shouting about it from the rooftops. I recall in their initial court filing they said that death threats had been reported to authorities- given that there has been no follow-up from them, one can only assume that 1) Prosecutors did not find any illegal activity (death threats, harassment and violence are all illegal) and 2) FFN and Protect Marriage WA are only concerned about these things in so far as they are useful as part of a propaganda campaign against LGBT people and their supporters.

    BTW: Supporters of the Domestic Partnership law have already had their names disclosed by the PDC - look it up on their website, you'll find my name there.

    John Colgan

  7. John. I personally know that a number of files have been given to legal counsel regarding specific harassment toward signature gatherers. There is also a file that documents the advocacy of death to Randall and Stickney. There is certain to be more litigation following the Supreme Court case regarding these individual matters. These cases are forth coming.

  8. Anonymous (FFN Staff?),

    Files schmiles, where are the prosecutions? Where are the Grand juries being impaneled? Criminal matters are handled by county prosecutors, not by FFN's legal counsel. All you have done is document your claims and your interpretation of events, if these have any merit whatsoever prosecutors will act on them. Thus far they have not. I see nothing in your post that disputes my assertion that the real point of these claims is to further your propaganda assault on LGBT people.

    PS I signed my name, where's yours? Or are you unwilling to stand behind your statements?

    John Colgan

  9. I do wish more people would use a name when they comment here. If nothing else, it makes it easier to know whom you're answering. Too many people called "Anonymous" is like Dr. Seuss' story about the woman with twenty-three sons all named "Dave."

    (I'm dating myself there.)

    John, out of curiosity, do you have family in Goldendale? I grew up with some Colgans there.

  10. Joel,

    If the Colgans in Goldendale are family they must be very distant. I grew up in Montana, and thought John Colgan was a fairly rare name (aside from my Granpa and me), then I met folks from MA in college who said that John Colgan was as common as Joe Smith in their hometowns :)


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