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How the justices broke on the R-71 decision

Post by Patrick O'Callahan on June 24, 2010 at 6:52 pm |
June 25, 2010 9:09 am

People who take a “Rah, rah, our team won!” approach to Supreme Court decisions may overlook some important things about Thursday’s ruling about public disclosure and Referendum 71.

Attorney General Rob McKenna, who defended Washington’s Public Records Act, won a battle he shouldn’t have had to fight.

The people who collected signatures to put R-71 on the November ballot had asked U.S. District Court Judge Benjamin Settle to prevent the state’s release of their petitions. Settle granted the injunction on astonishingly broad grounds, holding that they were likely to succeed in arguing that the First Amendment could require that any petition – not just theirs – be sealed upon request.

That conclusion seemed absurd, but the high court took the claim seriously enough to review it. McKenna wound up having to play defense in a game with very high stakes.

Thursday’s ruling was a matter of dodging an asteroid few people had seen coming. As far as R-71 – by itself – is concerned, the fight remains to be fought in a trial court. It will turn on whether the petitioners can produce believable evidence that they were genuinely threatened by gay-rights supporters.

Eight justices – Clarence Thomas was the dissenter – found it easy to dismiss an across-the-board constitutional right of anonymity for petitioners. But the concurring opinions showed varying degrees of receptiveness to evidence-based, case-by-case challenges to laws like the Public Records Act.

Antonin Scalia was hostile to any claim of anonymity, noting that even ballots weren’t secret for much of the country’s history.

John Paul Stevens, Ruth Bader Ginsburg joined Sonia Sotomayor in opining that evidence-based arguments for anonymity should have to clear a high bar.

Samuel Alito disagreed – to the point of suggesting the R-71 folks “have a strong argument” for exemption from the PRA.

Chief Justice John Roberts and Anthony Kennedy appear to be on the same page: Open to a challenge grounded in facts, but neither hostile nor enthusiastic.

I count – including Thomas – four justices willing uphold anonymity if a group approached them with specific evidence of threats instead of cosmic constitutional generalizations. Four more who could be persuaded if the threats were dire enough. Scalia: Maybe if someone was holding a knife to the petitioner’s throat.

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