CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/6/2023 1

Public Disclosure of Referendum 

Petition Signatures 

Doe v. Reed (Benjamin H. Settle, W.D. Wash. 3:09-cv-5456) 

Persons who signed a referendum petition filed a federal complaint 

seeking to enjoin the state’s releasing the identities of the over 

138,500 signatories. The district court held a proceeding that afternoon and a hearing on the following day, which the state defendants chose not to attend. The court issued a temporary restraining 

order and held a preliminary-injunction hearing a little more than a 

month later. The district court granted a preliminary injunction, 

but the court of appeals reversed it. At the beginning of its term, the 

Supreme Court stayed the reversal, reinstating the injunction, but 

the Supreme Court affirmed the court of appeals’ reversal at the end 

of the Supreme Court term. On remand, the district court denied 

the plaintiffs’ as-applied challenge and lifted the injunction. After 

the petitions were released on the internet, the court of appeals determined that the case was moot. 

Subject: Ballot measures. Topics: Ballot measure; intervention. 

Protect Marriage Washington and two anonymous persons filed a federal 

complaint in the Western District of Washington’s Tacoma courthouse, 

which serves the state’s capital, for declaratory and injunctive relief on July 

28, 2009, seeking to protect the identities of over 138,500 Washington residents who signed a referendum petition.1

 Referendum 71, planned for the 

November 2009 election, sought to overturn legislation granting domestic 

partners rights and responsibilities more similar to those of married partners.2

 With their complaint, the plaintiffs filed a motion for a temporary restraining order and a preliminary injunction.3

The court assigned the case to Judge Benjamin H. Settle, who held a 

courtroom proceeding at 4:20 p.m. on the day that the case was filed, instructed the plaintiffs to serve the defendants, and set a hearing on a temporary restraining order for the following afternoon.4

 The defendants, Washington’s secretary of state and his public-records officer, did not appear at 

the July 29 hearing.5 Several members of the news media were at the proceeding, but not so many as to cause any difficulties.6

1. Complaint, Doe v. Reed, No. 3:09-cv-5456 (W.D. Wash. July 28, 2009), D.E. 2; Doe v. 

Reed, 561 U.S. 186, 193 (2010); Doe v. Reed, 586 F.3d 671, 675–76 (9th Cir. 2009); Doe v. 

Reed, 823 F. Supp. 2d 1195, 1196 (W.D. Wash. 2011); see W.D. Wash. Civ. R. 5(e)(1) (assigning cases in Thurston County to the Tacoma courthouse). 

2. Doe, 561 U.S. at 191; Doe, 586 F.3d at 673, 674–75; Doe, 823 F. Supp. 2d at 1197. 

3. Motion, Doe, No. 3:09-cv-5456 (W.D. Wash. July 28, 2009), D.E. 3. 

4. Docket Sheet, id. (July 28, 2009) (D.E. 1). 

Tim Reagan interviewed Judge Settle for this report by telephone on October 30, 2012. 

5. Temporary Restraining Order, Doe, No. 3:09-cv-5456 (W.D. Wash. July 29, 2009), 

D.E. 9. 

6. Interview with Hon. Benjamin H. Settle, Oct. 30, 2012. 
Public Disclosure of Referendum Petition Signatures 

2 Federal Judicial Center 10/6/2023 

Finding “a colorable First Amendment claim,” Judge Settle temporarily 

enjoined the defendants “from releasing the names, addresses, or other contact information of those individuals who signed the Referendum 71 petition.”7

 Judge Settle set a preliminary-injunction hearing for September 3.8

On August 6, the secretary moved to join as defendants entities that had 

requested disclosure of the signatories.9 Judge Settle determined that the entities could seek intervention if they wished.10 On August 2711 and September 

1,12 two of the entities moved to intervene. 

On August 28, Washington Families Standing Together (WAFST) 

moved to intervene because the temporary restraining order was impairing 

its state-court challenge to the secretary’s certification of the referendum for 

the November ballot.13 On September 3, Judge Settle modified the temporary 

restraining order to permit WAFST access to signature information for purposes of challenging the referendum so long as WAFST did not publicly disclose the signatories’ identities.14

At the September 3 hearing, Judge Settle denied without prejudice one 

motion to intervene because it was defectively filed and granted the others.15

On September 16, he again denied intervention to the pro se defective filer 

because the filer’s interests were adequately represented by other parties.16

On September 10, applying strict scrutiny to Washington’s Public Records Act (PRA), Judge Settle granted the plaintiffs a preliminary injunction.17

An appeal was heard on October 14,18 and the court of appeals reversed 

the injunction on October 15.19 A week later, the court issued its opinion: 

7. Temporary Restraining Order, supra note 5; Doe, 586 F.3d at 676; see Lornet Turnbull, 

Judge Bars Release of Names on Petitions, Seattle Times, July 30, 2009, at B1. 

8. Temporary Restraining Order, supra note 5. 

9. Joinder Motion, Doe, No. 3:09-cv-5456 (W.D. Wash. Aug. 6, 2009), D.E. 23. 

10. Order, id. (Aug. 24, 2009), D.E. 33. 

11. Intervention Motion, id. (Aug. 27, 2009), D.E. 36. 

12. Intervention Motion, id. (Sept. 1, 2009), D.E. 58. 

13. Intervention Motion, id. (Aug. 28, 2009), D.E. 43; see Janet I. Tu, Foes Sue to Block 

Referendum 71, Seattle Times, Aug. 28, 2009, at B1 (reporting on state court case). 

14. Order, Doe, No. 3:09-cv-5456 (W.D. Wash. Sept. 3, 2009), D.E. 59; see Names on R-71 

Petitions Stay Hidden as Judge Studies Case, Seattle Times, Sept. 4, 2009, at B1. 

15. Docket Sheet, supra note 4 (D.E. 62); Preliminary Injunction at 2, Doe, No. 3:09-cv5456 (W.D. Wash. Sept. 10, 2009), D.E. 63. 

16. Order, Doe, No. 3:09-cv-5456 (W.D. Wash. Sept. 16, 2009), D.E. 73, summarily aff’d, 

Order, Doe v. Reed, No. 09-35832 (9th Cir. Nov. 1, 2010).

17. Preliminary Injunction, supra note 15; Doe v. Reed, 561 U.S. 186, 193 (2010); Doe v. 

Reed, 697 F.3d 1235, 1237 (9th Cir. 2012); Doe v. Reed, 586 F.3d 671, 676 (9th Cir. 2009); 

Doe v. Reed, 823 F. Supp. 2d 1195, 1196 (W.D. Wash. 2011); see Janet I. Tu, R-71 Signatures 

Kept Private, Seattle Times, Sept. 11, 2009, at A1. 

18. Doe, 586 F.3d at 676; see Both Sides Make Case on R-71 Signatures, Seattle Times, Oct. 

15, 2009, at B3. 

19. Order, Doe v. Reed, Nos. 09-3518, 09-35826, and 09-35863 (9th Cir. Oct. 15, 2009); 

Doe, 697 F.3d at 1237; see Lornet Turnbull, Release Signatures, Court Says, But Appeal 

Planned, Seattle Times, Oct. 16, 2009, at B1. 
Public Disclosure of Referendum Petition Signatures 

Federal Judicial Center 10/6/2023 3

The district court’s analysis was based on the faulty premise that the 

PRA regulates anonymous political speech. . . . 

To the extent the district court did not rely exclusively on anonymous 

speech cases, the district court nonetheless erred in applying strict scrutiny. 

. . . 

. . . . 

We conclude that each of the State’s asserted interests is sufficiently important to justify the PRA’s incidental limitations on referendum petition 

signers’ First Amendment freedoms.20

On October 20, the Supreme Court stayed the court of appeals’ ruling 

and reinstated Judge Settle’s injunction.21

On June 24, 2010, however, the Supreme Court affirmed the court of appeals’ decision, concluding that disclosure of referendum petitions in general 

does not violate the First Amendment.22 “We leave it to the lower courts to 

consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition, which is pending before the District Court.”23

On October 17, 2011, Judge Settle denied the plaintiffs’ as-applied challenge and lifted the injunction.24 On October 23, 2012, the court of appeals 

denied an appeal as moot: “The petitions are now available in original and in 

searchable form on the internet.”25

On November 3, 2009, the voters preserved expanded rights and responsibilities for domestic partners.26

20. Doe, 586 F.3d at 677, 680 (applying intermediate scrutiny); see Doe, 561 U.S. at 193. 

21. Doe v. Reed, 558 U.S. 967 (2009); see Lornet Turnbull, All Petition Signatures a Secret—For Now, Seattle Times, Oct. 21, 2009, at A1; William Yardley, Justices Uphold Ban on 

Releasing Names on a Petition, N.Y. Times, Oct. 21, 2009, at A22. 

22. Doe, 561 U.S. at 191; Doe, 697 F.3d at 1238; see Adam Liptak, Secrecy Rejected on Ballot Petitions, N.Y. Times, June 25, 2010, at A22; Janet I. Tu & Kyung Song, High Court Ruling Won’t End Fight Over Ref. 71, Seattle Times, June 25, 2010, at A1. 

23. Doe, 561 U.S. at 191.

24. Doe v. Reed, 823 F. Supp. 2d 1195 (W.D. Wash. 2011); Doe, 697 F.3d at 1238; see

Lornet Turnbull, Ruling Leads to Release of Ref. 71 Signers’ Names, Seattle Times, Oct. 18, 

2011, at B1. 

25. Doe, 697 F.3d at 1238. 

26. See Janet I. Tu, Ref. 71 Certified for Ballot, but Legal Battle Not Over Yet, Seattle 

Times, Sept. 3, 2009, at B1; Janet I. Tu, State Voters Expand the Rights of Same-Sex Couples, 

Seattle Times, Nov. 6, 2009, at A1; Lornet Turnbull, Domestic Partner Measure Kicks In, Seattle Times, Dec. 3, 2009, at A1.