The U.S. Supreme Court has just ruled in an eight-to-one opinion that governments can disclose the personal information on initiative and referenda petitions, generally speaking, without violating the First Amendment. But whether the petitions for Washington state's Referendum 71, circulated last year to repeal rights for gay couples, will be made public is left up in the air.
Writing for the majority, Chief Justice John Roberts says, "The issue at this stage of the case is not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so. We conclude that such disclosure does not as a general matter violate the First Amendment."
The full opinion is here.
However, Protect Marriage Washington, sponsors of the measure, had contended that petition signers of R-71 were at risk of personal harm if their names and addresses were released, citing threats made to people involved in California's Prop 8. By signing the petition, voters were engaging in private political speech—like voting—and the state had no particular benefit in releasing the names and addresses of people who signed, the group argued.
While saying petitions aren't inherently private, the court maintains that specific petitions can be reviewed to determine if the information on those sheets may be shielded from public disclosure. In this case, the court appears to kick this case (Doe v. Reed) back down to a federal district court for review. Roberts continues: "We leave it to the lower courts to consider in the first instance the signers’ more focused claim concerning disclosure of the information on this particular petition."
Some of the saltiest words from the bench come from Justice Antonin Scalia, who was particularly testy during the oral arguments, and dismisses the anti-gay group's fundamental argument outright in his concurring opinion: "I doubt whether signing a petition that has the effect of suspending a law fits within 'the freedom of speech' at all." Scalia goes on to detail the history of public voting in the US, which did not switch to a secret ballot until 1880. And even then, he writes, "new paper ballots did not make voting anonymous."
Justice Thomas was the only dissenting vote on the bench.
The case arose because group called WhoSigned.org requested the names and addresses of R-71 signers to post online—in part so people could confront anti-gay petition signers and so the public could double-check that signatures had been legally verified by the state.
But it looks like anti-gay forces will have a hard time—in any court—arguing that R-71 petitions should be private.
"The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R—71 petition, or on similarly controversial ones," writes Roberts. But speaking of other controversial initiatives, he continues, "Plaintiffs have offered little in response. They have provided us scant evidence or argument beyond the burdens they assert disclosure would impose on R—71 petition signers or the signers of other similarly controversial petitions. Indeed, what little plaintiffs do offer with respect to typical petitions in Washington hurts, not helps: Several other petitions in the State 'have been subject to release in recent years,' plaintiffs tell us... but apparently that release has come without incident."
As for threats, Scalia adds, "Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation... Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do 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 the Home of the Brave."
After the jump. Statements from Washington Secretary of State Sam Reed (the defendant), AG Rob McKenna (who argued the case) and Washington Families Standing Together (which ran the campaign to uphold gay rights and a respondent in the case)
Says Sam Reed:
Even as we welcome today’s ruling, I understand privacy concerns in the Internet era and the desire to participate in our initiative and referendum process without fear of harassment or retaliation. I will continue to speak out for civility in our citizenship and will firmly insist that petition signatures not be used in a threatening or inappropriate way. We have a long history of debating and voting on some very difficult and personal issues in a civil way, and I believe we will continue to do so. We do not want to ever chill voters’ right to take part in what we value as direct democracy.
Says AG Rob McKenna:
This is a good day for transparency and accountability in elections—not just in Washington but across our country. We’re pleased the Supreme Court ruled in favor of disclosure, upholding the public’s right to double-check the work of signature gatherers and government — and giving them the ability to learn which voters are directing the state to hold an election on a new law. Citizen legislating is too important to be conducted in secret.
Says Washington Families Standing Together:
The Court has made clear today that public disclosure requirements are an important means of making sure measures are not put on the ballot by fraudulent means or mistake.
“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. In light of the foregoing, we reject plaintiffs’ argument and conclude that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.”
This 8- 1 ruling by the highest court in the land is a significant defeat for those who have sought to enshrine discrimination into law at the ballot box. Nowhere is the integrity and transparency of elections more important than where the ballot box is being used in an attempt to take away fundamental rights. Nowhere is it more important for the public to know that attempts to affect the lives of their fellow citizens by promoting ballot measures are free from fraud and error. Perhaps no other group has witnessed its rights put up for public vote more than LGBT Americans. Social conservatives have used ballot measures in state after state, over more than 30 years, to keep LGBT Americans from being able to adopt children, to marry and even to be protected from discrimination in housing and employment.
This is the third loss for these groups in our state over the past year as they tried to repeal legislation ensuring that all families are treated equally under Washington State law. First the State PDC said no when these same groups tried to hide their donors. Then voters approved Referendum 71, retaining the law, by more than 53%. Now the U.S. Supreme Court has ruled against the proponents’ attempt to undermine disclosure laws.
With regard to the assertion by the anti-gay groups that they would be harmed if petition signatures were subject to public disclosure, as Justice Stevens said in his concurring opinion,
“Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures.”
The Supreme Court has in the past allowed exemptions to public disclosure where there's a clear minority party that has suffered both official and societal retaliation by the majority such that disclosure presents a very real threat. With regard to Referendum 71, however, the groups making this claim were not the minority, but to the contrary, were the ones trying to diminish the rights of the minority. They will be hard pressed to convince a judge the record here is otherwise.
In an amicus brief provided to the Supreme Court in Doe v. Reed, a group of political scientists reported that not only was the assertion of alleged harassment unsubstantiated in Washington State, but the plaintiffs did not present a single verified threat to any signer of a ballot measure petition in any state in any election. As their brief said, “More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the Internet, yet there is no evidence that any of these signers has faced any threat of retaliation or harassment by reason of that disclosure.”
WAFST applauds today’s decision and thanks all those who filed briefs and supported our collective efforts as we fought over the last year to protect the rights of all Washingtonians.