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View Diary: SCOTUS To Hear Case On Right To Know Anti-Gay Signers (198 comments)

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  •  I Separate Mentally (1+ / 0-)
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    The legal issues implicated by signatures on petitions (the Washington case) and those implicated by effectively sealing a public trial (the Proposition 8 camera injunction.)  I suspect SCOTUS will, too, since they implicate two different bodies of law.

    As to the latter, let's get the easy part out of the way.  I believe that SCOTUS was already predisposed to keep the Proposition 8 case off mass media for its own reasons - an already knee-jerk aversion to public scrutiny for its own hearings combined with anti-gay bias in the majority.  I don't think anything else was implicated in that decision - from their side, all 16 pages about "district rulemaking" being merely weak cover from what both sides admitted was an extraordinary meddling into another judge's conduct of a trial.  

    From our side, however, the injunction raises the dangerous spectre of SCOTUS controlling the courtroom proceedings of lower court judges short of promulgating a Supreme Court rule.  Judge Walker, not exactly a liberal or a person who likes theatre, and I speak from personal experiences before him, decided on the merits that the public importance of the Proposition 8 trial justified its recordation and dissemination outside the courtroom.  And, despite a few procedural flaws in the timing of their execution of changing the Northern District rules to permit it (and you can see by following the rulemaking history that they were confused as to whether a formal petition to Judge Kozinski was even necessary or an order from Judge Walker would suffice), the district took substantial steps despite there being no mandated period of advance notice beyond "reasonable opportunity to comment", and the litigants having been put on notice for 4.5 months that this was coming and, thus, having had such reasonable opportunity as it related to this trial.  

    From SCOTUS perspective, that should have been the end of it.  

    That it wasn't is a dangerous trend.

    The only good news is that SCOTUS, while acknowledging that they had been asked to rule based on privacy grounds, stayed far away from the shibboleth that somehow a witness in a courtroom has a right to privacy.  They do not, and you can see that the court did not give that any type of meaningful traction, even as it used that claim to satisfy prong two of the preliminary injunction calculus (irreparable harm.)  

    HOWEVER, none of those issues parallel the question in Washington State, IMO, which is this:  does one's signature on a petition designed to qualify a measure for the ballot enjoy the same right to privacy as a vote? I would argue that it does, and that signing a petition implicates both the anonymity granted by freedom of association law and the privacy guaranteed to an elector.  The law is clear in both - one cannot be compelled to disclose either one's membership's or one's vote on a ballot measure.

    Petition signing is the functional equivalent not of ballot sponsorship - which IMO is done by the official proponents of a measure - but of voting on the measure itself.  The difference is one of form, rather than substance.  By signing a petition, a person expresses support for the underlying measure more often than not (it is theoretically possible, but highly doubtful, that someone would sign a petition to put something on the ballot that they oppose on the merits.)  That's a vote, IMO.  And I would argue strenuously that this is private.  The government has, of course, a legitimate interest in being able to verify the authenticity of signatures - but no more.  And definitely, members of the public, who are not delegated that duty, have neither a legitimate interest in knowing who "voted" to put something on the ballot nor any governmental duty to confirm the legitimacy of such "votes."  

    Their interest is partisan, and partisan only.  And there is no right to know who one's opposing partisans are in an electoral contest, because indeed votes are secret.

    This is the compromise reached in California law, in which the use of names on initiative petitions is strictly prohibited by anyone other than government officials and for any purpose other than validating that the petition contains the names of genuine electors who could in fact vote on the matter if it qualifies for the ballot.  Washington State has a different law, but I believe that the law of private associations and secret ballots should trump it's decision except as it relates to government officials.  IMO, that is the correct compromise, even if it means that LGBT advocates who want to publicize the names of anti-equality signers don't to do that.  Sorry, but I feel that the potential dangers in other contexts far outweigh the good of disclosure in this particular case.

    If you don't stand for something, you will go for anything. Visit Maat's Feather

    by shanikka on Sun Jan 17, 2010 at 05:45:55 AM PST

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