By Misha Isaak of Portland, Oregon. Misha was campaign manager for Attorney General Hardy Myers in 2004. He and his partner are among the 2,200 couples to have registered as domestic partners in Oregon.
Coverage of legal issues by Oregon media outlets has been driving me nuts. It’s bad enough that the media’s political reporting is obsessed with identifying winners and losers. This news-as-horserace approach has also dominated reporting on court decisions.
Last week’s decision in Lemons v. Bradbury by a panel of the Ninth Circuit Court of Appeals that rejected a challenge to Oregon’s domestic partnership law provided yet another opportunity for reporters to discuss who won and who lost, rather than what the Court actually decided.
A 600-word article about the ruling that appeared in Friday’s Oregonian included just 100 words -- a meager four sentences -- addressing the basis of the Ninth Circuit’s decision. The article’s remaining 500 words rehashed the underlying horserace: the history of gay rights in Oregon and the reactions of the winners and losers.
The Oregonian was not alone in its shoddy coverage of the court decision. The 400-word Associated Press article that appeared in the Statesman Journal included just 81 words about the basis of the court’s decision. (Compare that with the whopping 63 words that the article dedicated to discussing the out-of-state source of funding for the plaintiffs’ legal team.)
This results-based reporting is not only incomplete; it’s misleading. Despite what the news coverage suggested, last week’s decision was not about gay rights. In fact, the 16-page Ninth Circuit opinion mentioned Oregon’s domestic partnership law only twice, and only in its summary of the case’s background facts.
(JustOut’s liveblog about the Ninth Circuit oral argument last month misguidedly bemoaned, “OK, so we’re almost 35 minutes into the arguments and there’s not been a word said yet about the impact this case has on LGBT Oregonians.” Ugh.)
The case was about how the law should view petition-signing. The U.S. Supreme Court has held that certain rights, such as the right to vote, are so “fundamental” that the government must provide a highly persuasive justification before it can burden those rights. For example, it is unconstitutional to require property ownership as a qualification to vote, because that requirement significantly burdens the fundamental right to vote without a persuasive justification.
In this case, opponents of Oregon’s legislature-passed domestic partnership law sought to gather enough signatures to put the law to a statewide popular vote, but the Secretary of State, using a statistical sampling method, determined that they had not collected enough valid signatures. The plaintiffs were individuals who apparently had signed the petition but whose signatures nonetheless were thrown-out because they did not match signatures on their voter-registration cards.
The Court ruled that the Secretary of State’s system for checking signatures does burden a fundamental right (something the defendants, who supported the domestic partnership law, disputed). However, the burden is a fairly minor one, the Court held, especially when weighed against the state’s interest in efficiently counting signatures. (In fact, one footnote in the opinion observed that Oregon’s signature-review process actually counts many more invalid signatures than excludes valid signatures.) On this basis, the Court held that the state’s system of checking signatures is constitutionally permissible.
The infamous Bush v. Gore also reared its ugly head in this opinion. That case halted Florida’s recount of votes in the 2000 presidential election because the lack of uniform rules for which ballots to count (hanging chads, pregnant chads, etc.) denied “equal protection” to voters. Plaintiffs here argued that the process of rejecting signatures similarly lacks uniformity.
To this argument, the Ninth Circuit panel said, “Even were Bush [v. Gore] applicable to more than the one election to which the [Supreme] Court appears to have limited it, Oregon’s standard for verifying referendum signatures would be sufficiently uniform and specific to ensure equal treatment of voters. The Secretary [of State] uniformly instructs county elections officials to verify referendum signatures by determining whether each petition signature matches the signature on the signer’s voter registration card.”
OK… I’ve managed to summarize the court’s opinion in under 375 words. And although my summary is far from comprehensive, I’ve provided substantially more information about the news event that occurred last Thursday than the Oregonian, the Associated Press, and the blog posts I’ve read on the subject.
One particularly wrongheaded stakeholder quoted in the AP article insisted, “This case was never necessarily about the signature verification process, it was about overturning the domestic partnership law, and that was a very real threat.” While this view may accurately explain why gay rights advocates chose to participate in this litigation, it does nothing to help news-readers understand what occurred last Thursday -- what the Court actually decided.
Results-obsessed news coverage of court decisions leads readers to believe that judges are nothing more than robed super-legislators who arbitrarily inflict their personal policy opinions on the public. But for the judges who issued last Thursday’s ruling, this case was about the signature verification process, not the fate of Oregon’s domestic partnership law. News outlets mislead their readers when they report otherwise.