On Wednesday, the proponents of Referendum 71 ( the unsuccessful effort to repeal last year’s everything but marriage domestic partnership law) will face off against the State of Washington in the United States Supreme Court to determine whether the First Amendment protects against the release of the identity of initiative/referendum petition signers under the Washington Public Records Act. Though this dispute has been the subject of prior articles, I reviewed the briefs filed before the Supreme Court to see how the parties’ respective arguments developed.

The Briefs of the Referendum 71 proponents are very strong. They focus well on the notion that signing an initiative is political speech subject to the broadest protection of the first amendment against intimidation, arguing corruption and intimidation are the two biggest threats to a democracy. The biggest weaknesses of their argument are (1) the lack of a record of harassment in connection with referendum 71 and (2) the question whether signing a petition is an anonymous act.

The Proponents anticipated both these issues by arguing the record of harassment during the Proposition 8 campaign in California (the successful effort to constitutional the ban on gay and lesbian marriage) and constructing a multi-step analysis of anonymity suggesting that while signers agreed to disclose their identities to the petition signature gatherers and other signers who see their signatures and to the State to confirm the validity of the signatures, they did not agree to disclose their identities to the public through the public records act.

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