ARIZONA ATTORNEY Austin Nimocks had just 20 minutes to convince three federal judges that the State of Oregon screwed over opponents of domestic partnerships when the elections department tossed out dozens of petition signatures last fall.
The coalition of anti-gay groups collecting signatures in an attempt to put the issue to a vote fell just five signatures short in October. Domestic partnerships went into effect earlier this year after a federal judge knocked down the groups' original challenge to the state's decision. The coalition appealed, and on July 8, the two sides faced off again, in a hearing at the Ninth Circuit Court of Appeals.
Nimocks, representing that coalition, claimed that the state unfairly invalidated signatures and didn't give people a chance to reinstate a signature after it was tossed out—something that people are allowed to do when their ballot signature is in question.
"What we're asserting is the right to participate in the democratic process," Nimocks said, adding later that there is no due process when petition signatures are tossed.
One of the three judges, Stephen Reinhardt, challenged attorneys for both sides about the logistics of the state's signature verification process. "This whole process is one of approximation. You start with a sample and you always disqualify some. And you qualify some of which may be right, some of which may be wrong," Reinhardt pointed out. If Nimocks was arguing that the state had a duty to investigate disqualified signatures, then it would only be fair to also investigate valid signatures, Reinhardt argued.
Nimocks agreed, saying the state "absolutely could if they wanted to." But Reinhardt argued that such a process may not "be reasonable."
Kaye McDonald, an attorney for the state, pointed out that not every signature is even looked at; the state uses a statistical sampling process to check petitions. "When you go into the process, you know that your signature is not necessarily going to end up, in the vast scheme of things, counted," she argued. "It's not the same thing as voting, in the sense that it's an intermediate step. Yes, it's important. The question is: Is this a reasonable way to go about this, to determine which [signatures] are authentic and which are not?"
Arguing for gay rights group Basic Rights Oregon, attorney Margaret Olney said that the law's opponents simply fell short of the number needed to land on the ballot. Now that the law is in effect, a referendum isn't the way to challenge the law.
"There are other procedures for opponents of domestic partnerships," Olney said, such as a repeal effort—something opponents ditched this summer, after realizing they didn't have enough time to gather signatures before the deadline. "They cannot resurrect Referendum 303 simply by asking for new rules here."
Speaking to reporters after the hearing, Nimocks said he expected a decision on their appeal in the next 30 days.