Last week in California, the U.S. Court of Appeals for the Ninth Circuit ruled to lift the ban on Washington releasing the Referendum 71 petitions. But the U.S. Supreme Court this week suspended the Ninth Circuit’s ruling, which means the ban remains in effect while the Supremes prepare to resolve this issue once and for all.

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In its reversal of Tacoma-based U.S. District Court Judge Benjamin Settle’s ruling last month that the petitions shouldn’t be released because they are “anonymous political speech” protected by the Constitution, the Ninth Circuit said Settle “relies on an incorrect legal standard and therefore must be reversed.”

Here is the Ninth Circuit’s full 21-page opinion on its ruling. Among its highlights:

• The district court’s analysis was based on the faulty premise that the PRA regulates anonymous political speech. The signatures at issue, however, are not anonymous. First, the petitions are gathered in public, and there is no showing that the signature-gathering process is performed in a manner designed to protect the confidentiality of those who sign the petition. Second, each petition sheet contains spaces for 20 signatures, exposing each signature to view by up to 19 other signers and any number of potential signers. Third, any reasonable signer knows, or should know, that the petition must be submitted to the State to determine whether the referendum qualifies for the ballot, and the State makes no promise of confidentiality, either statutorily or otherwise. In fact, the PRA [Public Records Act] provides to the contrary. Fourth, Washington law specifically provides that both proponents and opponents of a referendum petition have the right to observe the State’s signature verification and canvassing process. Thus, the district court’s finding that the speech at issue is anonymous is clearly erroneous.
• Without the Public Records Act, the public is effectively deprived of the opportunity independently to examine whether the State properly determined that a referendum qualified, or did not qualify, for the general election.
• The stated aim of the Public Records Act, which itself was passed through the initiative process, is to keep the citizens “informed so that they may maintain control over the instruments that they have created.” There is no indication that despite this clear statement, the Public Records Act was nonetheless intended to suppress free expression.
• The Public Records Act as applied to the referendum petitions does not violate the First Amendment.