Box Turtle Bulletin

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Posts for October, 2009

Thank You, Microsoft

Timothy Kincaid

October 6th, 2009

Seattle Times

Microsoft Corp. has donated $100,000 to Washington Families Standing Together, the campaign seeking through Referendum 71 to retain the latest expansion of the state’s domestic partnership law, up for a public vote on Nov. 3. The domestic partnership law extends marriage-like state benefits to gay and some senior couples.

Ken Hutcherson must be having a conniption.

9th Circuit to Hear Appeal of Special Treatment for Referendum 71 Signatories

Timothy Kincaid

September 22nd, 2009

Last month, U.S. District Judge Benjamin Settle in Tacoma decided that public petitions to change legislation in the State of Washington were protected by a veil of secrecy. He declared that the First Amendment protected the anonymity of those who signed Referendum 71, an effort to deny rights to gay couples.

Anti-gay activists had argued that gay people and those who support them might deny their business to those who wanted to harm gay folk and therefore their identities must be kept secret so as to ensure that they could engage in anti-gay activism without any negative consequences.

The State, with an interest in open processes, has appeal to the Ninth Circuit, claiming that open government is in the best interest of the people. (Seattle PI)

The 9th U.S. Circuit Court of Appeals has granted Attorney General Rob McKenna’s request for a fast-track appeal. A hearing is scheduled for Oct. 14 in Pasadena, Calif.

Gay Philanthropist Donates $100K To Equality March

Jim Burroway

September 15th, 2009

From the Washington Blade:

Gay philanthropist Bruce Bastian of Utah has donated $70,000 to the National Equality March in D.C. and plans to contribute another $30,000 for the event because he strongly believes it will jump-start the LGBT rights movement.

Jump-start the LGBT rights movement? Nothing will jump-start it like two victories in Maine and Washington, and nothing will deflate it like two more defeats in November. Remember the huge letdown after Prop 8? Or are our attention spans really that short?

I appreciate the passion for the March but it is being foolishly misdirected. Not only are its goals ill-concieved and not thought through, but it’s slated for October 11 when Congress will not be in recess and President Obama will be out of town.

Frankly, this whole March idea may be a great ego boost for the organizers, but it’s incredibly selfish considering the needs of LGBT people who face ballot initiatives right now aimed at stripping them and their families of basic rights. That $130,000 can make a huge difference in those fights, not on the grassy lawn of the Mall while everyone else is out of town.

Please donate to No on 1 in Maine and Approve Ref.71 in Washington.

WA Anti-Gays to Remain Anonymous

This commentary is the opinion of the author and may not reflect the opinions of other authors at Box Turtle Bulletin.

Timothy Kincaid

September 11th, 2009

“There, I guess King George can read that!” declared John Hancock signing in a large firm script and thereby attaching his name, reputation, and fortune to the risky venture of independence.

It’s likely that Hancock made no such declaration. But the myth has become part of our national identity, less of an anecdote and more of a mindset. We Americans like those who stand behind their convictions, those who think that if you believe in something that you have to be willing to put your name on the line, to be willing to risk something for your principles.

We don’t have much respect for those who want the privilege of their position, but are unwilling to risk anything. We don’t like back-room dealers, vigilantes who hide their identity under a sheet, or politicians who say one thing and do another. Our laws demand that an accused be allowed to confront his accuser in court face to face. Our political process requires that votes by legislators – and even debate – be public so that we can see who stands where. If you want to make the decisions, you need to be accountable for them.

In short, we don’t like sneaks.

But in Washington, the anti-gays are sneaks. They managed to scrape together enough signatures (with the help of the Secretary of State) to qualify the anti-gay Referendum 71 for the ballot. But they don’t want to be accountable for those signatures. They want to deny gay people basic rights… but they want to do it on the sly.

The supporters of Referendum 71 have sued to force the State of Washington to hide the names of the signatories, to keep their identities secret. And a federal judge has agreed. (Seattle Times)

A federal judge has continued to keep private the names and addresses of those who signed Referendum 71, saying they likely are protected under the First Amendment and that the state failed to prove a compelling public interest in their release.

U.S. District Judge Benjamin Settle in Tacoma granted a preliminary injunction today, blocking the state from making the petitions public.

Now the First Amendment of the Constitution of which I am aware says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

And “the people” in Washington have petitioned, which is their right. But this judge thinks that they are entitled to do so anonymously. And I think that this is a most dangerous interpretation.

This sets a precedent for other petitions and other appeals to government. It opens the door for special interests of all sorts to change laws and propose initiatives under a cloak of secrecy, denying the citizenry even the basic knowledge of who is behind such efforts.

And it does not stop with petitions. If the First Amendment protects identity for petitions, what else does it protect? If, indeed, petitions can be without scrutiny, if the subjects of such petitions can be denied knowledge of the petitioners, what else in the First Amendment is also protected by the shield of anonymity?

Is the press allowed a veil of anonymity? Will the courts deny the victim of a libelous attack knowledge about who owns, operates, or writes for the paper that defamed him?

Is peaceful assembly now a masked mob?

Perhaps this judge is familiar with a First Amendment of which I am unaware. But if so, I’m sure it is one that is attached to a constitution that would be foreign to our founders who, like John Hancock, were willing to risk life, freedom, and property to loudly and largely put their names on their revolution.

Referendum 71 Cleared for Vote

Timothy Kincaid

September 8th, 2009

Thurston County Superior Court Judge Thomas McPhee has rejected the arguments by Washington Families Standing Together that only signatures of actual registered voters collected in conformity with required procedures should be considered as valid towards the anti-gay referendum.

WFST may appeal the decision, but time is quickly running out.

Referendum 71 Signatures Released… But Not Public

Timothy Kincaid

September 3rd, 2009

The suit to release the names of the signatories of Referendum 71 to gay groups seeking to know who signed (and to publish the names) has been delayed for another week. But the opponents of the referendum seeking to have invalid signatures disqualified were provided with the names.

Yes, it’s confusing.

The Stranger:

In a dance between federal and state courts, US District Court Judge Benjamin Settle has just announced that petitions for Referendum 71 will remain sealed until September 10, when he will make his final decision whether the names and addresses of people who signed should be made public. However, Judge Settle did release petitions to Washington Families Standing Together (WAFST), which, earlier this afternoon, filed a lawsuit in Thurston County Superior Court to challenge the validity of signatures that were accepted by elections officials.

Washington Judge OK’s Referendum 71 Certification

Timothy Kincaid

September 2nd, 2009

In Washington, Judge Julie Spector has decided not to block Referendum 71 from being being certified. But her decision may be procedural rather than based on content. (Seattle PI)

Spector said challenges to a referendum must be filed in Thurston County Superior Court after certification – and supporters of the “everything but marriage” law still had that option for trying to get R-71 off the ballot. The group that brought the original lawsuit – Washington Families Standing Together – said it would go to court in Thurston County to try to block R-71.

As to whether the signatures were invalid, the judge found that question ambiguous.

In her ruling Spector said Reed has the power under state law to reject petitions with falsely signed declarations, petitions with blank declarations and signatures from people who weren’t yet registered to vote.

“It is conceded that the number of signatures represented by these inadequate petitions is significant. Without them, the secretary of state could not certify Referendum 71 for the ballot,” Spector wrote.

However she also said that state law does not require the secretary of state to not accept petitions that don’t meet statutory requirements. “In summary, under Washington case law it is unclear whether there are any limits to the secretary of state’s discretion as long as he has chosen to accept petitions rather than reject them.”

In other words, it was up to the Secretary of State whether he wanted to allow Referendum 71 to go to ballot. We will see if Superior Court agrees.

But judge also noted that there was language in the petition that may invalidate the entire process.

The judge also said there were highlights on top of the petitions that contain “apparent falsehoods,” such as the statement that if same-sex marriage becomes law public schools would be forced to teach that homosexuality is “normal…even over the objections of parents.”

Spector said the required signature-gatherers declaration swears that people who signed the petition did so “knowingly.”

“It is unclear whether a signature-gatherer can swear than an individual signer has signed the petition ‘knowingly’ when the signature-gatherer has allegedly misrepresented the contents of the petition,” Spector wrote.

Court Decision on Referendum 71 on Wednesday

Timothy Kincaid

August 31st, 2009

Seattle PI:

During a hearing Monday afternoon, King County Superior Court Judge Julie Spector heard arguments from lawyers representing the Secretary of State, proponents of R-71 and Washington Families Standing Together, the group opposed to the referendum.

Families Standing Together filed a lawsuit last week requesting an injunction that would keep the referendum off the fall ballot. Spector said she will issue a ruling by Wednesday on the matter.

Referendum 71 Qualifies

Timothy Kincaid

August 31st, 2009

From the Secretary of State’s website:

With the Referendum 71 signature-check now nearly complete, state election officials say they’ve now confirmed that sponsors turned in more than the bare minimum needed for a spot on the November statewide ballot. Signature-checkers passed the 121,000 mark on Monday, the 23rd day of an exhaustive hand check of all 137,000-plus signatures submitted on July 25 by foes of a new “everything but marriage” domestic partnership law passed by the Legislature in April.

The numbers still are unofficial and not final, as checkers do one final check of hundreds of previously rejected signatures of people who weren’t initially found in the voter registration records. That should extend the margin a bit, but the final margin could be in the range of 1,000.

Unless the court rules against the Secretary’s procedure of accepting unsigned and fraudulently stamped petition sheets, refusing to double-check identified questionable signatures, and allowing signatures for not-yet-registered voters, then Washingtonians will be asked to validate or reject the legislature’s action.

Take a moment now to think about what you can do to impact the outcome of votes in Washington and Maine.

Referendum 71 Hinges on Lawsuit

Timothy Kincaid

August 27th, 2009

The Washington Secretary of State’s Election Division has now observed 125,631 (91.2%) of the signatures submitted for validation. Of these, 110,797 have been accepted and approximately another 500 will be accepted by the “third check” process.

This means that of the remaining 12,058 signatures to review, the opponents of domestic partnership enhancements need only get 9,260 signatures, or 76.7% deemed valid. This is, at this time, a foregone conclusion.

However, Washington Families has sued to stop the Secretary of State from certifying the signatures. They raise a number of issues encompassing several irregularities.

Procedural: The SoS is accepting petitions that are not signed by the circulater or which are known to be fraudulently signature-stamped by the campaign manager. While this may seem a matter of technicality, the fraudulent signature-stamps is a criminal act and in addition to those petitions being rejected, Larry Stickney should be prosecuted.

Fraudulent: Signatures are being accepted as valid even when it is known that the signer was not registered to vote at the time they signed.

Dismissive: The Elections Division is refusing to reinspect over 1,000 specific instances where observers believe they have detected error. I’m confused as to the purpose of observers if the Secretary refuses to listen to their observations.

Should Washington Families prevail in having the 36,154 signatures on unsigned or stamped petitions be removed then the referendum is invalid. If the unregistered signers or the specific errors be considered, then the referendum again becomes to close to call.

Addendum: For those following the peculiar “third check”, had this step not been incorporated, today the fail-rate would have for the first time exceeded 12.4% and the failure of this referendum would have been predictable.

Gay Group Sues Washington Secretary of State

Timothy Kincaid

August 27th, 2009

Per the WA Secretary of State’s blogsite:

A lawsuit has been filed in King County Superior Court by Washington Families Standing Together requesting a Temporary Restraining Order to prevent the Secretary of State from certifying Referendum 71 to the ballot.

The complaint:

5. The Secretary of State (“the Secretary”) is responsible for overseeing the determination of whether a referendum qualifies for the ballot. Striving toward the laudable goal of voter enfranchisement, the Secretary has made it a priority to accept signatures whenever possible. Unfortunately, in so doing, the Secretary did not comply with certain statutory requirements. In the course of the signature verification process for Referendum 71, it became apparent that the Secretary , relying on advice from the Attorney General, was ignoring the requirement directed by the Legislature that the anti-fraud declaration be signed by each signature-gatherer. Plaintiffs have received confirmation from the SOS that the Secretary has accepted thousands of petitions on which the signature-gatherer who circulated the petition did not sign the declaration.

6. Likewise the Plaintiffs received confirmation from the SOS that the Secretary was ignoring the requirement that only individuals who were duly registered voters could legally sign petitions. On August 17, the Secretary instructed his staff to disregard the date reflected in the voter files as the voter registration date and accept signatures from individuals who were not registered as o f the date they signed the petition or even by the date that the Referendum 71 petitions were filed. As a result, signatures by individuals not registered to vote at the time they signed a petition were counted toward the total number of signatures required to place Referendum71 on the ballot, in contravention of State law and in violation of the sworn oath every person signing a petition must make.


21. Protect Marriage Washington sorted and organized its petitions at the bottom of the Capitol stairs in Olympia before delivering the petitions to SOS staff. In the course of this final sort, PMW realized that many signature-gatherers had not filled out the required declaration on the back of the petition. SOS staff observed as PMW personel obtained a signature stamp from Larry Stickney, the campaign manager to PMW, and affixed Mr. Stickney’s stamp to many petitions whose signature-gatherer had not completed the declaration.

23. Persuant to a public disclosure request, Plaintiffs have learned that the Secretary accepted 33,966 signatures on 2,508 petitions (“Unverified Petitions”) where Mr. Stickney’s name had been stamped in the signature-gatherer declaration. It is a violation of State law to sign a petition circulated by another or to sign someone else’s name on the declaration.

37. As a result, Washington Families observers have witnessed SOS staff accepting signatures from voters who registered after the Referendum 71 petitions were files (and thus, who could not possibly have been registered at the time they signed the petition or even by the time the petitions were submitted to the Secretary).

42. On August 18, Washington Families asked the SOS to review more that 1,000 possible errors spotted by observers with regard to signatures and addresses that did not appear to match an petitions where a single individual appeared to have signed on behalf of several other people. The SOS had previously reviewed 222 similarly noted errors from observers and had discovered that 13% had been accepted in error that should have been rejected. The SOS nonetheless rejected the request to review the next sample noted by the teams of observers and submitted by the lead observers.

August 25 Referendum 71 Update

Timothy Kincaid

August 25th, 2009

With 110,288 signatures reviewed (80.1%), a total of 97,261 have been approved (80.7% of those needed). The cumulative fail-rate is 11.77%.

No new “third check” signatures moved from “not registered” to “accepted” today. I don’t yet know why. I estimate that about another 800 signatures that have been reviewed will be moved for an adjusted fail-rate of 11.05%.

However, the daily rejection rate for missing signatures was far below the trend so I really don’t know what they did today.


For those wondering what’s happening with the “third check,” the third checkers are still reviewing the outcome of, and compiling the stats for, the volumes past No. 220. By tomorrow night, we hope to have the final numbers for another 100 volumes.

Late Registrations Accepted by Washington Secretary of State

Timothy Kincaid

August 25th, 2009

The Elections Division of the Washington Secretary of State has clarified that it will count as “accepted” the signatures of persons not registered to vote at the time they signed so long as their registration has been processed by the time that their name is triple-checked with the live database.

In other words, the deadline to sign Referendum 71 was July 25th. But because most names have not yet been triple checked, if you were not registered at that time (or you just made up a bunch of names) you could probably still register today and get your signature added back into the accepted pile.

There is no deadline for registering to vote for purposes of qualifying an initiative or referendum; as a practical matter, the deadline is the date that the signature on the petition is checked. Checkers are instructed that a signature on a petition is valid if they find a person with the same name in the voter registration file, and the signature on the petition matches the signature in the voter registration file. The registration date has never been a limiting factor.

I recognize that the purpose of the petition process is to reflect the will of a sizable segment of the electorate. I also understand that elections officials want to increase voter registration and see the petition process as a tool for increasing participation in democracy. I further get that they don’t want to deny a legitimate citizen the right to be heard due to a technicality about when those who took their registration filed the forms.

But this policy appears to be both susceptible to abuse and possibly inconsistent with state law.

… when the person or organization demanding any referendum of an act or part of an act of the legislature has obtained a number of signatures of legal voters equal to or exceeding four percent of the votes cast for the office of governor at the last regular gubernatorial election prior to the submission of the signatures for verification, the petition containing the signatures may be submitted to the secretary of state for filing.

I see no language allowing provisional voters or future voters or unregistered-but-intending-to-register-some-day voters.

August 24th Washington Referendum 71 Update

Timothy Kincaid

August 24th, 2009

A total of 103,898 signatures have been reviewed, or 75.5%
A total of 91,716 have been accepted, or 76.1% of those required.

The current fail rate for non-deferred signatures is 11.69%. However, this is accurate for only the first 220 volumes; the rest is subject to revision for registrations not processed in the data base before it was downloaded. I project that there may be perhaps another 700 signatures that are considered rejected at the moment which will ultimately be accepted.

At this point we are working under assumptions and guesses, but the “real” fail-rate is probably around 11.0% of all inspected signatures. Unless there is a high fail-rates for the last quarter of signatures – perhaps 16.8%, then this referendum may qualify. Keep in mind that we do not know whether the petitions are homogeneous or if the last quarter is cleaner or less clean than the first three quarters.

A New Wrench in the Washington Count

Timothy Kincaid

August 21st, 2009

There is good news and bad news in the Washington Secretary of State’s verification of signatures for Referendum 71, the effort to stop enhancements to domestic partnerships from taking effect.

Good news: the fail rate seems to be inching closer to 12.4% every day. With 64.1% inspected, the permanant rejection rate is now 11.92%. But…. not exactly.

Bad news: there is another level of inspection which has previously not been included in my calculations. The position of the Secretary of State is that if 120,737 registered voters signed the petition, it goes on the ballot. In our reviews of the rejected signature rates, we have not been accounting for some valid signatures that are currently considered rejected.

The SoS is comparing signatures to a copy of the registration as of a specific date. But if a voter both registered and signed the petition on the same day (a not-uncommon occurance) then they would be a valid signature but their registration would not show up on the copy. So a final inspection is made of those signatures that have not been found on the rolls to see if their voter registration was processed after the database was secured.

Our checkers are finding in the live database about 12 percent of the names that were originally “not found” on the late June database copy. That is, of course, because the referendum organizers were encouraging people to sign the petition and register to vote at the same time, so many people actually registered to vote in July for the specific purpose of signing this petition. It is common practice for signature gatherers to register voters while circulating initiative and referendum petitions. In the past, signature gatherers have submitted voter registrations during the signature collection effort.

So even if there is a 12.4% fail rate, some of those “permanantly rejected signatures” will find themselves back in the accepted pile. About 84% of rejected signatures are from the “not registered” category and of those about 12% will later be deemed to be good.

Assuming that these will be added back, the “real” rejected signature rate is about 10.72%. So while the rate edges up daily, yet again our assumptions that this will fail have to be adjusted and it is – as the SoS has said all along – too close to call.

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