Litigation

Court Upholds Releasing Names in Petition-Privacy Case

By Peter Hardin

There is no automatic right for people who sign petitions seeking a public vote on a hot issue to keep their names secret, the Supreme Court ruled Thursday in a case from Washington state.

In an 8-1 decision, the high court ruled that releasing the names of signers of ballot petitions does not generally violate their free-speech rights, the Los Angeles Times reported.

The court handed a defeat to gay marriage foes who had fought to  keep secret the names of people who signed a ballot petition seeking repeal of Washington state?s domestic partnership law. Protect Marriage Washington had contended that disclosure of the names could bring threats, harassment, or reprisal, according to a Reuters article.

Chief Justice John G. Roberts wrote the majority opinion. He said, according to the Associated Press, that states must be able to guarantee that signatures on such petitions are valid:

“Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures….Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

Justice Roberts said Project Marriage Washington could try again in the lower courts on its hope to get an exemption. “Upholding the law against a broad based challenge does not foreclose a litigant’s success in a narrower one,” he said.

Justice Clarence Thomas, who dissented, said “compelled disclosure of signed referendum and initiative petitions under the Washington Public Records severely burdens those rights and chills citizen participation in the referendum process.”

There were seven opinions issued by the court.  Justice Antonin Scalia wrote, “Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.”

He added, according to a Dahlia Lithwick commentary in Slate, that he did not “look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble,” Justice Scalia cautioned, “the Home of the Brave.”

Washington Attorney General Rob McKenna applauded the court’s decision, saying “This is a good day for transparency and accountability in elections,” according to the Seattle Post-Intelligencer. “Citizen legislating is too important to be conducted in secret.”

Lawyer James Bopp Jr., who had represented the group fighting to keep the names secret, spoke in a statement of returning the battle to U.S. District Court in Washington state.

“Supporters of traditional marriage have been subject to death threats, vandalism, and even the loss of their jobs merely for exercising their right to free speech,” Bopp said. “We are confident that the District Court will agree that these tactics have no place in the discussion of marriage and will prevent the release of the personal information on those who support traditional marriage.”

The case, Doe v. Reed, involved a ballot initiative called Referendum 71 (see Gavel Grab). Voters ultimately approved keeping intact the expanded domestic-partnership law with “everything but marriage” benefits.

In his Election Law Blog, legal scholar Rick Hasen wrote that it represented “the first case where the Court begins to grapple with the cheap cost of disclosure of election-related information in the information age.” Some gay rights groups had said they intended to make public online the names of the Washington state petition signers.

Law clerk and commentator Josh Blackman wrote in his blog that Chief Justice Roberts “reaffirmed the validity of disclosure requirements” that were left intact by the Supreme Court’s earlier Citizens United decision. It  was widely regarded as a major defeat for campaign finance reform advocates.

Full post as published by The Gavel on June 24, 2010 (boomark / email).