Saturday, August 16, 2008

rave: appeals court rejects anti-gay referendum appeal (UPDATED)

Woo-hoo! The US Ninth Circuit Court of Appeals rejected anti-gay groups' attempt to stop Oregon's domestic partnership law. The lawsuit itself had nothing to do with gay rights specifically but involved whether the state has the right to reject petition signatures. Anti-gay groups basically were asking the court to change the rules to allow the failed petition to go on the 2008 general election ballot and stop the law.

. . . “The judges clearly understood the issues at stake in this case when they rejected the plaintiffs’ demand for special treatment,” said Basic Rights Oregon attorney Margaret Olney, who assisted the State’s attorneys in the defense. “The out-of-state groups behind this lawsuit failed to meet the minimum standards of public support for their unpopular agenda last year. The Court is saying unequivocally: you can’t change the rules just because you don’t like the outcome.” . . .

. . . According to Karynn Fish, spokesperson for Basic Rights Oregon, there is a footnote to today's ruling. "If the state had been forced to look at every single signature, the plaintiffs would have fallen short by an even wider margin," said Fish via phone from Eastern Oregon. "The process is weighted toward accepting signatures, not denying them.". . .

Gay rights supports' work is not over. BRO's Jeana Frazzini on

. . . "We’re going to not only be keeping an eye on what’s happening in California this year, but looking at how we can support our neighbors to the south,” she said, referencing California’s upcoming Measure 8 ballot to preserve their recent same-sex marriage victory.

“The vote in California will be indicative of how we move forward… Domestic partnership is a bridge, and we remain committed to full marriage equality. It’s not just the work here in Oregon, but it’s part of the national picture.”

(More coverage: Merc,

08/16/2008 UPDATE:

I finally found a response from the anti-gay plaintiffs' regarding the Appeals Court ruling. While the ruling was unrelated to gay rights or so-called 'family values', the fringe plaintiffs are desperately trying to spin the decision into a liberal-court-ruling-against-conservatives story. From The Oregonian/

. . . Marylin Shannon, a former Republican state senator from Brooks and chief petitioner on the referendum effort, said the 9th Circuit decision will only make the opposition stronger because it represents an attack on core values.

"The courts are not friendly to traditional values," she said. . . .

. . . "Today's 9th Circuit decision perfectly illustrates why, in November, we need to elect conservative legislators and state officials who respect our values, our democracy and Oregon's Constitution, which clearly defines marriage," said Craig Myers, a spokesman for Concerned Oregonians. . . .

The court's ruling is an interesting read -- especially to my novice law understanding. According to the decision (PDF via, the plaintiffs had three arguments.

PLAINTIFF: 1. Petition Signature Verification Unfairly Burdens Voters' Rights

COURT: . . . Plaintiffs’ argument “proceeds from the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny.Burdick v. Takushi, 504 U.S. 428, 432 (1992). This premise is flawed. “States retain the power to regulate their own elections,” and “ ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” Id. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). . . .

PLAINTIFF: 2. ". . . the Secretary violated their equal protection and due process rights by not providing the same notice and opportunity to rehabilitate referendum signatures that is afforded to signers of vote-by-mail election ballots. . . ."

The court recognized the obvious. A voter signing a petition on a street corner with a paid signature gatherer isn't the same as voting. The state can set different procedures and the petition signature review is already weighted in favor of accepting invalid sigatures.

COURT: . . . These differences between referendum petitions and vote-by-mail ballots justify the minimal burden imposed on plaintiffs’ rights in this case.. . .

As pointed out by BRO's Karynn Fish, the court's footnote shows the anti-gay petitioners even had fewer valid signatures:

COURT: The state’s expert reviewed 556 of the signatures county elections officials verified as matching, only a small percentage of the total number of Referendum 303 signatures. She found sixty-five signatures in that small portion in which she would have ruled differently than the county officials —i.e., in sixty-five cases the handwriting expert would have concluded that the accepted petition signature did not match the voter registration card. By contrast, the expert reviewed all of the signatures that county elections officials determined did not match, and found only six cases in which she would have ruled differently. Thus, if the handwriting expert had verified all of the signatures, the petition would have lacked sufficient signatures by a far wider margin than the county elections officials determined.

PLAINTIFF: 3. ". . . county elections officials lack uniform statewide rules for verifying referendum signatures, violating the rule from Bush v. Gore, 531 U.S. 98 (2000)."

The court affirmed that the state does have uniform statewide rules.

While the rural, Right wing activists would probably like to suggest the huge, urban, liberal, gay marriage-supportive Multnomah County is more bias against the anti-gay petition signers, the court's final point mentions that Multnomah County only rejected one signature:

COURT: . . . Finally, plaintiffs point to differences in the number of signatures rejected by various counties. For example, Hood River County rejected three of its twenty-one sampled signatures as non-matching; Multnomah County excluded only one non-matching signature from its 274 sampled signatures; and Washington County rejected seventeen of its 336 sampled signatures as non-matching. Plaintiffs contend that these differences demonstrate the absence of a uniform standard. This argument is without merit, for the reasons given by the district court. First, the statistical significance of these differences is questionable, considering the relatively small number of sampled signatures at issue. Second, signature gatherers in some counties do a better job than those in other counties. Most importantly, uniform standards can produce different results. Viewing the record as a whole, we are convinced that Oregon’s counties used the same uniform standard and thus would satisfy the requirements of Bush, if it were applicable. . . .

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