[EL] Doe v. Reed, more news

[Trevor Potter]

I cannot speak for Adam, but as for myself I will note that Brad's caricature of my position is amusingly kafkaesque-but not accurate. No citizen is obligated to initiate anyof this legal process, but when one voluntarily does enter the public arena one sould be prepared for a public debate. Taking steps to put a measure on the ballot begins a public legal process that has specific legal effect. One is asserting  that one meets the state's requirements for having a signature counted towards a state-mandated minimum number of signatures.  The signature has specific results- -it may result in the placement of a measure on the ballot for popular vote, and  in the enactment of law (or over-ruling of law, as the case may be). When a citizen  takes advantage of state legal provisions to initiate a change of the law, our democracy can require that this initiation of public action be public--if only to allow others to ascertain whether the signatures meet the legal requirements for such action. 

The separate question is whether Jim thinks firing someone for non-job related reasons should be limited by the state. He is certainly free to take the view that private employers should be free to discriminate on any non-work related basis they choose--though this would appear to be the triumph of a political value over an economic one (contra to Brad's claim), and to undermine Jim's objection to employers exercising this right where it exists. 
Trevor

Sent by Good Messaging (www.good.com)


 -----Original Message-----
From: 	Smith, Brad [mailto:BSmith at law.capital.edu]
Sent:	Monday, October 17, 2011 11:24 PM Eastern Standard Time
To:	law-election at uci.edu
Subject:	Re: [EL] Doe v. Reed, more news

There is an interesting divide here. The Bonin/Potter position seems to be that government should force speakers who are concerned about harassmanet to disclose their identities, thus creating a potential harassment problem. They then propose that government attempt to solve that harassment problem by making it more difficult to fire people - forcing employers, including gays, to hire and retain people they may not want to hire, and causing further sclerosis in labor markets, which, I'm going to guess, they will then ask government to solve with stimulus plans and job plans and the like. And they seem to think it woefully hypocritical for Jim to disagree.
 
Jim's position as I understand it - which would be mine - is that it is better for government not to create the first problem in the series. And that difference reflects a fairly broad fault line in political thinking that goes well beyond this particular issue.
 
Meanwhile, as Steve Klein noted, petition signatures as in Doe may be different from general advocacy in that they have a legal effect. But at least on other forms of advocacy, the government has no interest - compelling or non-compelling - in assisting persons in organizing boycotts and harassment, or even in knowing who to "criticize." 
 
But some have suggested that this is no problem, since harassed persons can call the police, or perhaps bring a lawsuit. I am looking forward to greater reliance on post-hoc policing by the police and lawsuits. Having this philosophy catch on could leave to a dramatic reduction in the regulatory state, which I would favor. I would rather not begin with constitutional rights, but you've got to start somewhere, I guess.
 
Finally, it is unfortunate that Justice Scalia is wrong on this issue. I doubt that he really has thought much about whether the disclosure craze has made our politics more genteel, but for now that is his view. Justice Scalia is a very fine judge, as Kevin Hamilton's comment seems to recognize. Nevertheless, as when conservatives like to point to Justice Stevens decision upholding Indiana's voter ID law, but I don't put much special weight on his opinion merely because he is allied a bit differently than usual. I just think he's wrong on this one.
 
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Trevor Potter
Sent: Mon 10/17/2011 9:12 PM
To: Bonin, Adam C.; JBoppjr at aol.com; rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news



I too was interested in Jim's complaint that contributors in CA were fired from their jobs for non-work performance related reasons. In context, he clearly thinks these employer actions were wrong. Does he therefore support  laws to protect employees from such firings ( a protection long sought by gay people). Or does his objection to such actions  only apply to protecting anti-same sex marriage activists?
Trevor Potter

Sent by Good Messaging (www.good.com)


 -----Original Message-----
From:   Bonin, Adam C. [mailto:ABonin at cozen.com]
Sent:   Monday, October 17, 2011 08:29 PM Eastern Standard Time
To:     JBoppjr at aol.com; rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject:        Re: [EL] Doe v. Reed, more news

The answer to harassment at work and the like is to extend civil rights laws to protect employees from being discriminated against on the basis of political beliefs expressed outside the workplace.  Prof. Volokh compiled a few such statutes back in the day: http://volokh.com/archives/archive_2006_04_30-2006_05_06.shtml#1146594920

Of course, it would also be nice for folks to have such protections for *being* gay.

________________________________
From: JBoppjr at aol.com [JBoppjr at aol.com]
Sent: Monday, October 17, 2011 8:06 PM
To: Bonin, Adam C.; rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news

They will be harassed, if there is an organized campaign to do so, like was directed at the Prop 8's contributors. That is a decision for the homosexual rights strategist to make.

As far as the police, most harassment is not criminal in nature, like firing an employee, as happened to some Prop. 8 contributors. When the harassment raises to the level of criminal activity, the record in Doe shows that not a single perpetrator was caught by the police and brought to justice, because the perpetrators just don't leave their business cards. So even if the police were willing to enforce the law, they are unable to do so.  So calling the police is meaningless and futile.

So it is let it rip time.  How fun for all the pseudo revolutionaries out there.

And Adam, when the worm turns, as it inevitably will, call me.  Jim Bopp

In a message dated 10/17/2011 6:05:24 P.M. Eastern Daylight Time, ABonin at cozen.com writes:
FYI (well, not yours Jim, because you know it already), the State of Washington has already released the names: http://hosted.ap.org/dynamic/stories/U/US_DOMESTIC_PARTNERSHIPS_SIGNATURES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-10-17-17-42-39

So we'll see if what results is robust First Amendment activity or something else.  (And even if we do, that's why we have police to enforce the law.)


From: JBoppjr at aol.com [mailto:JBoppjr at aol.com]
Sent: Monday, October 17, 2011 5:42 PM
To: Bonin, Adam C.; rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news

Yes, and that is because there was no organized campaign to harass the R-71 contributors like the organized campaign to harass the Prop 8 contributors.  The names and addresses of the Prop 8 contributors were posted on the Internet and one site map quested them. No one did this to the R-71 contributors. However, one of the organizations asking for the R-71 signers were one of the very organizations that organized the harassment of the Prop 8 contributors.  So, in California, the strategy was harassment of the Prop 8 contributors while in Washington the strategy was to harass the r-71 signers.

If this ruling stands, then it is open season on all contributors, petition signers, etc. Those with scant regard for the democratic process will be free to employ tactics of harassment and intimidation against political opponents. Blacks, gays and leftist were harassed yesterday; conservatives and Christians are harassed today. And no one is safe from the thugs and bullies tomorrow.  Jim Bopp

In a message dated 10/17/2011 5:25:52 P.M. Eastern Daylight Time, ABonin at cozen.com writes:
Jim, as you know, the Court also notes that the financial contributors to the anti-gay efforts in Washington had long been disclosed, and they suffered no harm as a result:

Further still, [Protect Marriage Washington] secured donations to finance the campaign for R-71. It is undisputed that between May and November of 2009, PMW reported 857 contributions to its cause. The names and other personally identifying information of these donors has been public knowledge for over two years. Doe has had ample time and opportunity to contact these individuals, some of which likely signed the R-71 petition in addition to donating to PMW's R-71 campaign. Even if none of these donors signed the R-71 petition, their experiences are far more closely related to the issues at hand than the random "evidence" supplied by Doe based on experiences of individuals around the country and the now stale experiences of those persons involved with Proposition 8. However, Doe has failed to supply sufficient, competent evidence that the publically known donors - as active supporters of R-71 - have experienced sufficient threats, harassment, or reprisals based on the disclosure of their information in connection to R-71 that would satisfy the reasonable probability standard that Doe must meet in this case.


Adam C. Bonin | Cozen O'Connor
1900 Market Street | Philadelphia, PA, 19103 | P: 215.665.2051 | F: 215.701.2321
abonin at cozen.com<mailto:abonin at cozen.com> | www.cozen.com

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com
Sent: Monday, October 17, 2011 5:16 PM
To: rhasen at LAW.UCI.EDU; law-election at uci.edu
Subject: Re: [EL] Doe v. Reed, more news

This statement in the court's opinion is the key to the court's erroneous decision:

"While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy."

The court required the Plaintiffs to prove that the signers of the R-71 petition were themselves subject to harassment.  Of course, this is to require an impossibility since the petitions have never been released to the public, so that the public does not know who to target for harassment. However, the court does find that the Plaintiffs have proven that "public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy." We believe under the law that this is all that one has to prove, since making public the signers of R-71 would disclose the identity of people who advocate traditional marriage to the public for harassment.  Jim Bopp

In a message dated 10/17/2011 3:06:12 P.M. Eastern Daylight Time, rhasen at law.uci.edu writes:
Breaking News: District Court Rejects Harassment Claims in Doe v. Reed<http://electionlawblog.org/?p=24330>
Posted on October 17, 2011 12:05 pm<http://electionlawblog.org/?p=24330> by Rick Hasen<http://electionlawblog.org/?author=3>

The state of Washington just won summary judgment<http://electionlawblog.org/wp-content/uploads/doevreed-summary-judgment.pdf> on remand in the Doe v. Reed case involving disclosure of the names of people signing a referendum concerning Washington State's gay rights law.

>From the opinion:

Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as "serious and widespread."



Here is another excerpt from the Court's conclusion:

Considering the foregoing, Doe's action based on Count II falls far short of those  an as-applied challenge has been successfully lodged to prevent disclosure of information otherwise obtainable under the PRA. Thus, the State's undoubtedly important interest in disclosure prevails under exacting scrutiny.

While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence. The right of individuals to
speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society. The facts before the Court in this case, however, do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to
the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24330&title=Breaking News: District Court Rejects Harassment Claims in Doe v. Reed&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24330&title=Breaking%20News%3A%20District%20Court%20Rejects%20Harassment%20Claims%20in%20Doe%20v.%20Reed&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10>, referendum<http://electionlawblog.org/?cat=56> | Comments Off
">From $25 to $10,000,000: A Guide to Political Donations"<http://electionlawblog.org/?p=24328>
Posted on October 17, 2011 12:01 pm<http://electionlawblog.org/?p=24328> by Rick Hasen<http://electionlawblog.org/?author=3>

NYT launches very interesting interactive campaign finance guide<http://www.nytimes.com/interactive/2011/10/17/us/politics/a-guide-to-political-donations.html?hp>.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24328&title=âEURoeFrom $25 to $10,000,000: A Guide to Political DonationsâEUR&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24328&title=%E2%80%9CFrom%20%2425%20to%20%2410%2C000%2C000%3A%20A%20Guide%20to%20Political%20Donations%E2%80%9D&description=>
Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
"Deep Sea Burial forms first corporate 'super PAC"<http://electionlawblog.org/?p=24325>
Posted on October 17, 2011 10:23 am<http://electionlawblog.org/?p=24325> by Rick Hasen<http://electionlawblog.org/?author=3>

WaPo reports<http://www.washingtonpost.com/politics/deep-sea-burial-forms-first-corporate-super-pac/2011/10/17/gIQABaRnrL_story.html>.  My earlier coverage is here.<http://electionlawblog.org/?p=24304>
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24325&title=âEURoeDeep Sea Burial forms first corporate âEUR~super PACâEUR&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24325&title=%E2%80%9CDeep%20Sea%20Burial%20forms%20first%20corporate%20%E2%80%98super%20PAC%E2%80%9D&description=>
Posted in campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
"U.S. District Court Judge in Ohio Orders Secretary of State to Put Libertarian Party on 2012 Ballot"<http://electionlawblog.org/?p=24322>
Posted on October 17, 2011 10:21 am<http://electionlawblog.org/?p=24322> by Rick Hasen<http://electionlawblog.org/?author=3>

Libertarians win one<http://www.ballot-access.org/2011/10/17/u-s-district-court-judge-in-ohio-orders-secretary-of-state-to-put-libertarian-party-on-2012-ballot/>.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24322&title=âEURoeU.S. District Court Judge in Ohio Orders Secretary of State to Put Libertarian Party on 2012 BallotâEUR&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24322&title=%E2%80%9CU.S.%20District%20Court%20Judge%20in%20Ohio%20Orders%20Secretary%20of%20State%20to%20Put%20Libertarian%20Party%20on%202012%20Ballot%E2%80%9D&description=>
Posted in ballot access<http://electionlawblog.org/?cat=46> | Comments Off
"Appeal filed in NJ voting-machines lawsuit"<http://electionlawblog.org/?p=24319>
Posted on October 17, 2011 10:19 am<http://electionlawblog.org/?p=24319> by Rick Hasen<http://electionlawblog.org/?author=3>

Andrew Appel has posted this item<https://freedom-to-tinker.com/blog/appel/appeal-filed-nj-voting-machines-lawsuit> at Freedom to Tinker.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24319&title=âEURoeAppeal filed in NJ voting-machines lawsuitâEUR&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24319&title=%E2%80%9CAppeal%20filed%20in%20NJ%20voting-machines%20lawsuit%E2%80%9D&description=>
Posted in voting technology<http://electionlawblog.org/?cat=40> | Comments Off
Absentee Ballot Fraud Leads to Mayoral Resignation<http://electionlawblog.org/?p=24316>
Posted on October 17, 2011 9:01 am<http://electionlawblog.org/?p=24316> by Rick Hasen<http://electionlawblog.org/?author=3>

See here<http://www.wsbtv.com/news/news/local/mayor-resigns-following-voter-fraud-investigation/nFG6R/> (via RNLA<https://twitter.com/#%21/TheRepLawyer/status/125954902311714816>). Once again voter fraud a state voter id law would not deter.
[http://www.addtoany.com/share_save#url=http://electionlawblog.org/?p=24316&title=Absentee Ballot Fraud Leads to Mayoral Resignation&description=]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D24316&title=Absentee%20Ballot%20Fraud%20Leads%20to%20Mayoral%20Resignation&description=>
Posted in absentee ballots<http://electionlawblog.org/?cat=53>, election administration<http://electionlawblog.org/?cat=18> | Comments Off
--
Rick Hasen
Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org <http://electionlawblog.org/> <http://electionlawblog.org/>


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