Litigation

On Petition-Privacy Case, and Fear in a Democracy

By Peter Hardin

The Supreme Court is expected to rule soon in a potential blockbuster case over whether to keep secret the names of people who signed a ballot petition seeking repeal of Washington state?s domestic partnership law.

Dahlia Lithwick, in a compelling Slate column, goes further to ask a related, profound question about fear in a democracy:

“What happens to our civic life when we’re all too scared to participate?”

Lithwick writes that concerns over possible witness intimidation led to cancellation of plans for a limited broadcast of the same-sex marriage trial in San Francisco, and that fear about testifying in that trial–and of retaliation–led to fewer witnesses testifying for critics who challenged Proposition 8, the ban on same-sex marriage.

In the Washington state case, (see Gavel Grab), foes of gay rights asked to shield the 138,000 names of those who signed the ballot petition. Fear of reprisal was at the heart of the argument for secrecy.

There’s more going on here, Lithwick adds. “Because the same folks who oppose making signatures public are also waging a war to do away with campaign-finance rules that would require disclosing the names of campaign donors.”

She ends her piece by posing a broad question, followed by remarks made by Justice Antonin Scalia at oral argument in the petition-privacy case:

“The one question we really should be asking is what these claims?that citizens are too frightened to testify, sign petitions, or contribute to political campaigns?say about the vitality of our legal and political systems.”

“Expressing one’s opinions requires political bravery, and our systems of governance will not function properly if we are all convinced everyone wants to club us to death for our unpopular views. Scalia certainly agrees: ‘The fact is,’ he warned in oral argument in the Washington ballot-initiative case, ‘running a democracy takes a certain amount of civic courage.’”

Full post as published by The Gavel on June 22, 2010 (boomark / email).