[EL] Doe v. Reed, more news

Tue Oct 18 13:07:43 PDT 2011

I had a couple of quick questions that perhaps someone can answer, as I’m legitimately confused on these issues in this case (my apologies if this is discussed further on in the email stream).

1.                  Having read Doe v. Reed, it seems the main argument for disclosure of signature lists was to ensure the validity of the signatures.  That is, disclosure played an important procedural role in ensuring that only those entitled to qualify the question to the people did so.  Of course, R-71 did qualify and was then beaten like a rented car at the ballot box.  Thus, the ship has sailed, the argument is over, it’s all in the past.  Why are people still seeking the names?  What do they seek to do with them and what is the government interest in disclosing the signatures to them at this point?

2.                  It would seem that, under the district court’s decision, unless you are part of some larger group that is routinely is harassed and coerced, the only way to successfully argue that you will be subject to harassment and coercion if your name and address is released is to demonstrate that you’ve suffered harassment and coercion because your name has been released.   At that point, what’s the point?  The only thing that gets the signer protection is the very thing the signer wishes to avoid.  How is that a workable standard?

I’ve never heard an answer to either of these questions.

Thanks,

Bill  

________________________________

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

[I]t may . . . be a bad idea to keep petition signatures secret.  There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance.  Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. . . . I do not look forward to a society which . . . exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism.

John Doe No. 1 v. Reed, 130 S. Ct. 2811, 2837 (U.S. 2010) (Scalia, J., concurring).  

Kevin J. Hamilton | Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, WA 98101-3099
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khamilton at perkinscoie.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 5:07 PM
To: ABonin at cozen.com; 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 | 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%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%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%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%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%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%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
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			rhasen at law.uci.edu
			http://law.uci.edu/faculty/page1_r_hasen.html
			http://electionlawblog.org <http://electionlawblog.org/> 

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