JOHN DOE1 v. REED ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE #1, an individual; JOHN 
DOE #2, an individual; PROTECT
MARRIAGE WASHINGTON,
Plaintiffs-Appellees,
v. No. 09-35818
SAM REED, in his official capacity  DC No.
as Secretary of State of CV 09-5456 BHS
Washington; BRENDA GALARZA, in
her official capacity as Public
records Officer for the Secretary of
State of Washington,
Defendants-Appellants. 
JOHN DOE #1, an individual; JOHN 
DOE #2, an individual; PROTECT
MARRIAGE WASHINGTON,
Plaintiffs-Appellees,
v.
SAM REED, in his official capacity No. 09-35826
as Secretary of State of  DC No.
Washington; BRENDA GALARZA, in CV 09-5456 BHS
her official capacity as Public
records Officer for the Secretary of
State of Washington,
Defendants,
and 
14587
14588 DOE #1 v. REED
WASHINGTON COALITION FOR OPEN 
GOVERNMENT, 
Defendant-intervenor-Appellant. 
JOHN DOE #1, an individual; JOHN 
DOE #2, an individual; PROTECT
MARRIAGE WASHINGTON,
Plaintiffs-Appellees,
v.
WASHINGTON FAMILIES STANDING No. 09-35863
TOGETHER,
Intervenor-Appellant,  DC No.
CV 09-5456 BHS
SAM REED, in his official capacity OPINION
as Secretary of State of
Washington; BRENDA GALARZA, in
her official capacity as Public
records Officer for the Secretary of
State of Washington,
Defendants. 
Appeals from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
October 14, 2009—Pasadena, California
Filed October 22, 2009
Before: Harry Pregerson, A. Wallace Tashima, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Tashima
DOE #1 v. REED 14591
COUNSEL
James Bopp, Jr., Bopp, Coleson & Bostrom, Terre Haute,
Indiana, for the plaintiffs-appellees.
William B. Collins, Deputy Solicitor General, Robert M.
McKenna, Attorney General of Washington, Olympia, Wash-
ington, for the defendants-appellants.
Leslie R. Weatherhead, Witherspoon, Kelley, Davenport &
Toole, Spokane, Washington, for intervenor-appellant Wash-
ington Coalition for Open Government.
Amanda J. Beane, Perkins Coie, Seattle, Washington, for
intervenor-appellant Washington Families Standing Together.
OPINION
TASHIMA, Circuit Judge:
Washington’s Secretary of State and Public Records Offi-
cer (together, the “State”) and Intervenors, Washington Coali-
tion for Open Government (“WCOG”) and Washington
Families Standing Together (“WFST”), appeal a decision of
the district court granting Plaintiffs, Protect Marriage Wash-
ington (“PMW”) and two individual signers of the Referen-
dum 71 petition, a preliminary injunction prohibiting the State
from making referendum petitions available in response to
requests made under Washington’s Public Records Act (the
“PRA”). Wash. Rev. Code § 42.56.001 et seq.
Under the Washington Constitution, a referendum must be
ordered on a bill passed by the legislature if a specified per-
centage of voters sign a petition for a referendum. The Refer-
endum 71 petition calls for a statewide election on Engrossed
Second Substitute Senate Bill 5688 (“SB 5688”), which
14592 DOE #1 v. REED
would expand the rights and responsibilities accorded state-
registered domestic partners. The PRA makes public records,
including referendum petitions, available for public inspec-
tion. In seeking a preliminary injunction, Plaintiffs argued
that, as applied to referendum petitions, the PRA violates the
First Amendment. We have jurisdiction over this appeal from
the district court’s grant of a preliminary injunction under 28
U.S.C. § 1292(a)(1). We reverse.
BACKGROUND
I. Washington’s Public Records Act
The PRA requires state agencies to make public records
available for public inspection and copying. Wash. Rev. Code
§ 42.56.070. It provides that “[i]n the event of conflict
between the provisions of [the PRA] and any other act, the
provisions of [the PRA] shall govern.” Wash. Rev. Code
§ 42.56.030. Although the PRA contains some exemptions,
none applies to referendum petitions. The PRA was enacted
through the initiative process and includes its own rule of con-
struction:
The people insist on remaining informed so that they
may maintain control over the instruments that they
have created. This chapter shall be liberally con-
strued and its exemptions narrowly construed to pro-
mote this public policy and to assure that the public
interest will be fully protected.
Wash. Rev. Code § 42.56.030.
II. Washington’s Referendum Process
Under the Washington Constitution, although legislative
authority is vested in the state legislature, the people reserve
to themselves the power to reject any bill or law through the
DOE #1 v. REED 14593
referendum process. Wash. Const., art. II, §§ 1 & 1(b).1 To
initiate the referendum process, petitions must be filed with
the Secretary of State containing the valid signatures of
Washington registered voters in a number equal to four per-
cent of the votes cast for the Office of Governor in the imme-
diately preceding gubernatorial election. Wash. Rev. Code
§ 29A.72.150. Referendum petition sheets must include a
place for each signer to sign and print his or her name,
address, city, and county at which he or she is registered to
vote. Wash. Rev. Code § 29A.72.130.
Once the referendum petition is filed, the Secretary of State
must verify and canvass the names of the voters who signed
the petition. Wash. Rev. Code § 29A.72.230. The verification
and canvassing “may be observed by persons representing the
advocates and opponents of the proposed measure so long as
they make no record of the names, addresses, or other infor-
mation on the petitions or related records during the verifica-
tion process except upon the order of the superior court of
Thurston county.” Id. The Secretary of State may limit the
number of observers to two opponents and two proponents of
the referendum if the Secretary of State deems that “a greater
number would cause undue delay or disruption of the verifica-
tion process.” Id.
After verification and canvassing, the Secretary of State
issues a determination of whether the referendum petition
contains the requisite number of valid signatures. Any citizen
dissatisfied with that determination may apply to the Thurston
County Superior Court for a citation requiring the Secretary
of State to submit the petition to the superior court “for exam-
ination, and for a writ of mandate compelling the certification
of the measure and petition, or for an injunction to prevent the
certification thereof to the legislature, as the case may be.”
Wash. Rev. Code § 29A.72.240. Within five days of the supe-
1
The Washington Constitution includes some exceptions to this reserved
power, but none applies in this case.
14594 DOE #1 v. REED
rior court’s decision, a party may seek review by the Wash-
ington Supreme Court. Id.
If it is ultimately determined that a petition contains the
requisite number of valid signatures, the referendum is sub-
mitted to a vote at the next general election. Wash. Const., art.
II, § 1(d).
III. Referendum 71
The Washington Governor signed SB 5688 on May 18,
2009. Known as the “everything but marriage act,” the bill
expands the rights and responsibilities of state-registered
domestic partners. On or about May 4, 2009, Larry Stickney,
the campaign manager for PMW,2 filed notice with the Secre-
tary of State of his intent to circulate a referendum petition on
SB 5688. On July 25, 2009, PMW submitted the petition with
more than 138,500 signatures to the Secretary of State for ver-
ification and canvassing.3
The petition, entitled “Preserve Marriage, Protect Chil-
dren,” includes a table for the following information for each
signer: printed name, signature, home address, city and
county, and an optional email address. The petition also
states:
To the Honorable Sam Reed, Secretary of State of
the State of Washington:
We, the undersigned citizens and legal voters of the
2
PMW was organized as a state political committee pursuant to Wash.
Rev. Code § 42.17.040. Its purposes are to collect the requisite number of
signatures to place Referendum 71 on the ballot and to encourage Wash-
ington voters to reject SB 5688.
3
The State asserts that about 122,000 signatures were valid. Presumably,
the PRA would make available all 138,500 signatures, however, because
all petition sheets, not only valid signatures, comprise the public records.
DOE #1 v. REED 14595
State of Washington, respectfully order and direct
that Referendum No. 71 . . . shall be referred to the
people of the state for their approval or rejection at
the regular election to be held on the 3rd day of
November, 2009; and each of us for himself or her-
self says: I have personally received this petition, I
am a legal voter for the State of Washington, in the
city (or town) and county written after my name, my
residence address is correctly stated, and I have
knowingly signed this petition only once.
Pursuant to Wash. Rev. Code § 29A.72.140, the petition
warns that “[e]very person who signs this petition with any
other than his or her true name, knowingly signs more than
one of these petitions, signs the petition when he or she is not
a legal voter, or makes any false statement on this petition
may be punished by fine or imprisonment or both.”
As of August 20, 2009, the Secretary of State had received
public record requests for the Referendum 71 petition from
Brian Murphy of WhoSigned.org, Toby Nixon of WCOG,
Arthur West, Brian Spencer on behalf of Desire Enterprises,
and Anne Levinson on behalf of WFST. Two entities,
KnowThyNeighbor.org and WhoSigned.org, publicly stated
that they intend to publish the names of petition signers on the
internet. Plaintiffs allege that these two groups have encour-
aged individuals to contact petition signers to have “personal”
and “uncomfortable” conversations.4
4
Plaintiffs appear to be referring to a June 8, 2009, press release:
“What does happen,” says [Aaron Toleos, co-director of
KnowThyNeighbor.org], “is that conversations are triggered
between people that already have a personal connection like
friends, relatives, and neighbors.”
“These conversations can be uncomfortable for both parties,” he
said, “but they are desperately needed to break down stereotypes
and to help both sides realize how much they actually have in
common.”
14596 DOE #1 v. REED
IV. Procedural History
On July 28, 2009, Plaintiffs filed this action, seeking to
enjoin the State from publicly releasing documents showing
the names and contact information of the individuals who
signed petitions in support of Referendum 71. Count I of the
complaint alleges that, as applied to referendum petitions, the
PRA violates the First Amendment because the PRA is not
narrowly tailored to serve a compelling government interest.
Count II alleges that, as applied to the Referendum 71 peti-
tion, the PRA is unconstitutional because “there is a reason-
able probability that the signatories . . . will be subjected to
threats, harassment, and reprisals.”
The district court granted Plaintiffs a temporary restraining
order on July 29, 2009, and, after a hearing, granted Plaintiffs’
motion for a preliminary injunction on September 10, 2009,
enjoining release of the Referendum 71 petition.5 The district
court applied strict scrutiny to the PRA and concluded that
Plaintiffs established they were likely to succeed on Count I
of their complaint.6 The State and Intervenors timely
appealed.
On September 14, 2009, the State moved this court for an
emergency stay and to expedite its appeal. We consolidated
the State’s appeal with those of Intervenors WCOG and
WFST. Because the election on Referendum 71 is set for
November 3, 2009, we ordered expedited briefing on the con-
solidated appeals and heard oral argument on October 14,
2009, on the merits of the appeals, as well as on the stay motion.7
5
On September 3, 2009, the district court granted the motions to inter-
vene of WFST and WCOG.
6
The district court based its preliminary injunction only on Count I.
Because the district court did not reach the merits of Count II, we likewise
do not reach Count II in reviewing the injunction.
7
We appreciate all counsel’s efforts and cooperation in meeting a
highly-expedited briefing schedule.
DOE #1 v. REED 14597
On October 15, 2009, we granted a stay pending our disposi-
tion on the merits of these appeals.8 We now reverse the pre-
liminary injunction.
STANDARD OF REVIEW
As recently articulated by the Supreme Court, a “plaintiff
seeking a preliminary injunction must establish [1] that he is
likely to succeed on the merits, [2] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and [4] that an injunc-
tion is in the public interest.” Winter v. Natural Res. Def.
Council, Inc., 129 S. Ct. 365, 374 (2008).
We review the district court’s grant of a preliminary injunc-
tion for abuse of discretion. Am. Trucking Ass’ns, Inc. v. City
of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (citing Lands
Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007)). A dis-
trict court abuses its discretion if it bases its decision on an
erroneous legal standard or clearly erroneous findings of fact.
Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.
2009) (citing Am. Trucking, 559 F.3d at 1052). Thus, applica-
tion of an incorrect legal standard in granting preliminary
injunctive relief or with regard to an underlying issue is
grounds for reversal. See Earth Island Inst. v. U.S. Forest
Serv., 351 F.3d 1291, 1298 (9th Cir. 2003) (citation omitted).
ANALYSIS
We are presented with the novel questions of whether refer-
endum petition signatures are protected speech under the First
Amendment and, if so, what level of scrutiny applies to gov-
8
On October 19, 2009, the Circuit Justice stayed our stay order. Doe #1
v. Reed, No. 09A356 (U.S. Oct. 19, 2009) (Kennedy, Circuit Justice). The
application was thereafter referred to the full Court which confirmed the
stay. Id. (Oct. 20, 2009). Nothing in either of those orders affects our con-
sideration of the merits of these appeals.
14598 DOE #1 v. REED
ernment action that burdens such speech. For the purposes of
our analysis, we assume, as did the district court, that the act
of signing a referendum petition is speech, such that the First
Amendment is implicated.9 See First Nat’l Bank of Boston v.
Bellotti, 435 U.S. 765, 776 (1978) (noting that when a litigant
challenges a statute on First Amendment grounds, the thresh-
old question is whether the statute burdens expression the
First Amendment protects). Even assuming that speech is
involved, however, we conclude that the district court applied
an erroneous legal standard when it subjected the PRA to
strict scrutiny.
I. District court’s analysis
[1] 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 rea-
sonable 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 provides to the contrary. Fourth, Washington law specif-
ically provides that both proponents and opponents of a refer-
9
The State contends, with some force, that signing a referendum petition
is not speech, but is instead, a legislative act, i.e., that it is an integral part
of the exercise of the legislative power reserved to the people by the
Washington Constitution. See State ex rel. Heavey v. Murphy, 982 P.2d
611, 615 (Wash. 1999) (“ ‘A referendum . . . is an exercise of the reserved
power of the people to legislate . . . .’ ” (quoting Belas v. Kiga, 959 P.2d
1037, 1040-41 (Wash. 1998))). Because we assume, for purposes of this
case, that signing a referendum petition is speech, we do not reach this
argument and intimate no view on it.
DOE #1 v. REED 14599
endum 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 errone-
ous.10 And, because it was based on that faulty premise, the
district court’s application of anonymous speech cases requir-
ing strict scrutiny was error.
[2] To the extent the district court did not rely exclusively
on anonymous speech cases, the district court nonetheless
erred in applying strict scrutiny. Relying on Meyer v. Grant,
486 U.S. 414, 420-21 (1988), and Buckley v. Am. Constitu-
tional Law Found. (Buckley II), 525 U.S. 182, 197 (1999), the
district court concluded that petition signing, like petition cir-
culation, is protected political speech, and suggested that any
regulation of protected political speech is subject to strict
scrutiny. This suggestion is unsupported by the applicable
case law. Even assuming, as we do here, that petition signing
is protected political speech, it does not follow that a regula-
tion that burdens such speech is necessarily subject to strict
scrutiny. See e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S.
622, 661-62 (1994) (applying intermediate scrutiny for
viewpoint- and content-neutral time, place, and manner
restrictions on speech); Burdick v. Takushi, 504 U.S. 428, 434
(1992) (applying balancing test to election restriction that bur-
dened First Amendment rights); Lincoln Club of Orange
County v. City of Irvine, 292 F.3d 934, 938 (9th Cir. 2002)
(“[T]he level of constitutional scrutiny that we apply to a stat-
utory restriction on political speech and associational freedom
is dictated by both the intrinsic strength of, and the magnitude
of the burden placed on, the speech and associational free-
doms at issue.”).
10
This appears to be more an assumption than a finding. All that the dis-
trict court “found” on this issue was that “at this time, the Court is not per-
suaded that waiver of one’s fundamental right to anonymous political
speech is a prerequisite for participation in Washington’s referendum pro-
cess.” All of the facts underlying this finding are undisputed. We have,
nonetheless, applied the deferential clear error standard of review to this
finding.
14600 DOE #1 v. REED
II. Applicable level of scrutiny
Having concluded that the district court’s basis for applying
strict scrutiny was in error, we turn to the PRA and determine
what standard should be applied.
[3] As noted above, not all laws that burden First Amend-
ment rights are subject to strict scrutiny. A regulation that has
an incidental effect on expressive conduct is constitutional as
long as it withstands intermediate scrutiny. See United States
v. O’Brien, 391 U.S. 367, 376 (1968); Jacobs v. Clark County
Sch. Dist., 526 F.3d 419, 434 (9th Cir. 2008).
In O’Brien, a student was arrested for burning his draft card
in protest of the Vietnam War. 391 U.S. at 369-70. The stu-
dent argued the statute was an unconstitutional infringement
upon his right to engage in political speech. Id. at 370. The
Supreme Court first assumed that “the alleged communicative
element in O’Brien’s conduct [was] sufficient to bring into
play the First Amendment.” Id. at 376. The Court then con-
cluded that “when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct, a sufficiently impor-
tant governmental interest in regulating the nonspeech ele-
ment can justify incidental limitations on First Amendment
freedoms.” Id. at 376. Applying intermediate scrutiny, the
Court concluded that the draft card statute was not unconstitu-
tional as applied to O’Brien. Id. at 377.
[4] As in O’Brien, we assume for the purposes of our anal-
ysis that signing a referendum petition has a “speech” element
such that petition signing qualifies as expressive conduct. We
also assume that the PRA’s public access provision has an
incidental effect on referendum petition signers’ speech by
deterring some would-be signers from signing petitions.
Given these assumptions, we conclude that intermediate scru-
tiny applies to the PRA.11
11
We note that “election regulations” are subject to a different analysis
altogether. Instead of applying O’Brien intermediate scrutiny, courts apply
DOE #1 v. REED 14601
[5] Under intermediate scrutiny, as articulated in O’Brien,
application of the PRA to referendum petitions is constitu-
tional if the PRA is within the constitutional power of the
government to enforce, it furthers an important government
interest unrelated to the suppression of free expression, and
the incidental restriction on alleged First Amendment free-
doms is no greater than necessary to justify the interest.
O’Brien, 391 U.S. at 377; see also Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 294 (1984).
a balancing test to determine whether an election regulation is a permissi-
ble infringement on First Amendment free speech rights. See Caruso v.
Yamhill County ex rel. County Comm’r, 422 F.3d 848, 859 (9th Cir. 2005)
(when an election regulation imposes only “reasonable, nondiscriminato-
ry” restrictions upon First and Fourteenth Amendment rights, “the [s]tate’s
important regulatory interests are generally sufficient” to justify the
restrictions) (quoting Burdick, 504 U.S. at 434); see also Burdick, 504
U.S. at 434 (holding that only when the regulation subjects such rights to
severe restrictions must it be narrowly drawn to advance a compelling
state interest). We assume, however, that the PRA is not an election regu-
lation. No case offers a sound definition of an election regulation, and its
meaning is not entirely discernible. However, Justice Thomas, in his Buck-
ley II concurrence, provides examples of cases that would likely be elec-
tion regulation cases, see 525 U.S. at 207, and none of them seems to
parallel the current case. For example, Justice Thomas cites Burson v.
Freeman, 504 U.S. 191, 198 (1992), wherein the Court subjected to strict
scrutiny a Tennessee law prohibiting solicitation of voters and distribution
of campaign literature within 100 feet of the entrance of a polling place.
Id. He also cited Anderson v. Celebrezze, 460 U.S. 780, 788-90 (1983),
which dealt with a challenge to an Ohio regulation that imposed a filing
deadline for independent candidates. Id. He cited several other cases. See
e.g. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997);
Brown v. Hartlage, 456 U.S. 45, 53-54 (1982); Meyer, 486 U.S. at 421.
Id. at 206-07. All of these cases, however, dealt with regulations that were
content-based; they all dealt directly and specifically with the election pro-
cess. The PRA, on the other hand, only incidentally deals with the election
process and only has attenuated consequences. It does not prevent the peti-
tion signers from signing the petitions or from otherwise lawfully qualify-
ing their referendum for a vote. At most, it might deter some voters from
signing the petition.
14602 DOE #1 v. REED
III. Constitutionality of the PRA
Applying O’Brien, we begin by noting that Plaintiffs do not
contend that “aside from its impact on speech, [the PRA] is
beyond the constitutional power of the [State] to enforce.” See
Clark, 468 U.S. at 298-99. We thus turn next to the govern-
ment interests the PRA furthers. The State has asserted two
interests: (1) preserving the integrity of the election by pro-
moting government transparency and accountability; and (2)
providing Washington voters with information about who
supports placing a referendum on the ballot. Both interests
plainly qualify as important.12
[6] “A [s]tate indisputably has a compelling interest in pre-
serving the integrity of the election process.” Eu v. S.F.
County Democratic Cent. Comm., 489 U.S. 214, 231 (1989)
(citing Rosario v. Rockefeller, 410 U.S. 752, 761 (1973)); see
also Buckley II, 525 U.S. at 191 (“States allowing ballot ini-
tiatives have considerable leeway to protect the integrity and
reliability of the initiative process . . . .”). In Washington, the
PRA plays a key role in preserving the integrity of the refer-
endum process by serving a government accountability and
transparency function not sufficiently served by the statutory
scheme governing the referendum process. The oversight pro-
cedure provided by statute allows the Secretary of State to
limit observers to two opponents and two proponents of the
referendum. See Wash. Rev. Code § 29A.72.230. This proce-
dure is insufficient to shift oversight from the special interest
groups to the general public. See Progressive Animal Welfare
Soc’y v. Univ. of Wash., 884 P.2d 592, 597 (Wash. 1994)
(“Without tools such as the [PRA], government of the people,
by the people, for the people, risks becoming government of
the people by the bureaucrats, for the special interests.”).
12
In making its strict scrutiny analysis, the district court recognized only
one of these interests, “preserving the integrity of its election process,” as
a “compelling governmental interest.” It did not address the State’s inter-
est, furthered by the PRA, of an informed electorate.
DOE #1 v. REED 14603
Without the PRA, the public is effectively deprived of the
opportunity independently to examine whether the State prop-
erly determined that a referendum qualified, or did not qual-
ify, for the general election.
Moreover, the PRA is necessary for citizens to make mean-
ingful use of the state superior court challenge also provided
by statute. See Wash. Rev. Code § 29A.72.240.13 The superior
court procedure would be at best inefficient and at worst use-
less, if citizens have no rational basis on which to decide
whether they are “dissatisfied” with the Secretary of State’s
determination before filing a challenge — and they cannot
gain that understanding without the right to inspect the peti-
tion sheets.
We have also recognized the State’s “informational inter-
est” as important. See Cal. Pro-Life Council, Inc. v. Ran-
dolph, 507 F.3d 1172, 1179 nn.8-9 (9th Cir. 2007) (noting
that the informational interest was “well-established” and that
California presented persuasive evidence demonstrating that it
was compelling); Canyon Ferry Rd. Baptist Church of E.
Helena, Inc. v. Unsworth, 556 F.3d 1021, 1032 (9th Cir.
2009) (having “little trouble” concluding that the state’s infor-
mational interest was important).
Plaintiffs correctly note that Cal. Pro-Life and Canyon
Ferry dealt with the interest in disclosure of financial backers
13
That statute provides:
Any citizen dissatisfied with the determination of the secretary
of state that . . . [a] referendum petition contains or does not con-
tain the requisite number of signatures of legal voters may, within
five days after such determination, apply to the superior court of
Thurston county for a citation requiring the secretary of state to
submit the petition to said court for examination, and for a writ
of mandate compelling the certification of the . . . petition, or for
an injunction to prevent the certification thereof . . . .
Wash. Rev. Code § 29A.72.240.
14604 DOE #1 v. REED
of referenda, not “generally what groups may be in favor of,
or opposed to, a particular . . . ballot issue.” Canyon Ferry,
556 F.3d at 1032-33 (holding that requiring disclosure of de
minimus in-kind contributions was unconstitutional because
the marginal informational gain did not justify the burden of
disclosure). Referendum petition signers, however, cannot be
considered “generally” in favor of a particular ballot issue.
Referendum petition signers have not merely taken a general
stance on a political issue; they have taken action that has
direct legislative effect. The interest in knowing who has
taken such action is undoubtedly greater than knowing gener-
ally what groups are in favor of or opposed to a ballot issue.
[7] We conclude that each of the State’s asserted interests
is sufficiently important to justify the PRA’s incidental limita-
tions on referendum petition signers’ First Amendment free-
doms. See O’Brien, 391 U.S. at 376-77. We conclude also
that the incidental effect of the PRA on speech is no greater
than necessary. See Ward v. Rock Against Racism, 491 U.S.
781, 798-99 (holding that a restriction need not be the least
restrictive means of furthering the State’s interest to survive
intermediate scrutiny).
[8] Finally, no one has claimed that the State’s interests are
at all related to the suppression or regulation of expression.
The stated aim of the PRA, 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.” Wash. Rev. Code § 42.56.030. There is no indica-
tion that despite this clear statement, the PRA was nonetheless
intended to suppress free expression.
[9] Accordingly, we hold that the PRA as applied to refer-
endum petitions does not violate the First Amendment.14
14
Because we conclude that Plaintiffs have failed to satisfy the first
Winters factor — likelihood of success on the merits — we need not
examine the three remaining Winters factors, see supra at 14597 (quoting
DOE #1 v. REED 14605
CONCLUSION
The district court applied an erroneous legal standard when
it applied strict scrutiny to the PRA. The proper analysis was
to apply intermediate scrutiny. Applying this analysis, we
conclude that the PRA is constitutional as applied to referen-
dum petitions.
The district court’s grant of the preliminary injunction is
REVERSED.
the four-factor Winters test), although we note that the district court’s
analysis of the remaining Winters factors relied on presumptions, rather
than findings of fact, arising from its erroneous legal conclusion that
Plaintiffs’ First Amendment rights were likely violated.