Supreme Court: States can release names of people who sign ballot measure petitions

Early this morning, the Supreme Court revealed that it had reached an opinion in Doe v. Reed, rejecting the broad assertion that the First Amendment bars states from making public the names of those who sign an initiative, referendum, or recall petition, and affirming the decision reached in the State of Washington's favor last year by the Ninth Circuit Court of Appeals.

The eight to one majority opinion was authored by Chief Justice John Roberts, and joined by every associate justice except for Clarence Thomas, who dissented. Stephen Breyer, Sonia Sotomayor, Antonin Scalia, and Samuel Alito all filed concurring opinions, (although Alito's reads more like a dissenting opinion).

The majority opinion declares:

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, and we therefore affirm the judgment of the Court of Appeals. 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, which is pending before the District Court.

The second part of the above paragraph effectively means that "Protect Marriage Washington" and their lawyer, James Bopp Jr., can continue preventing the disclosure of the names of the people who signed Referendum 71 for the time being, while they try to persuade a district court judge (like Benjamin Settle, who previously was sympathetic to their arguments) that disclosure of the names would lead to widespread harassment.

However, Secretary of State Sam Reed has indicated he believes his office will eventually be able to make public the Referendum 71 signatures. In a news release this morning, he says, "Absent a clear case that brings forward hard evidence of harassment, and not merely the normal rough-and-tumble of campaign discourse, we would expect to prevail [in lower court], and to eventually be permitted to release petitions through the normal Public Records Act requests."

Justice Antonin Scalia, who concurred in the judgment, disagreed with the idea that the State of Washington's interest in "preserving the integrity of the electoral process" outweighed petition signers' right to be anonymous, because he does not believe petition signers have any such right. "I doubt whether signing a petition that has the effect of suspending a law fits within 'the freedom of speech' at all," he writes in the opening paragraph of his opinion.

As he later observes, lawmaking has historically been done in public and must be done in public for democracy to be vibrant and healthy:

Plaintiffs point to no precedent from this Court holding that legislating is protected by the First Amendment. Nor do they identify historical evidence demonstrating that “the freedom of speech” the First Amendment codified encompassed a right to legislate without public disclosure. This should come as no surprise; the exercise of lawmaking power in the United States has traditionally been public.

Scalia then points out that in America's early days, petitions were read aloud in Congress, and people (only white men at the time) cast their votes in person. He wraps up his opinion with a rather magnificently written conclusion:

Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that — just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States — or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest,” ante, at 7 (internal quotation marks omitted).

And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. 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 (McIntyre) 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.

Rarely do we at the Northwest Progressive Institute strongly agree with Justice Scalia, but today, we find great wisdom in his words.

We concur that open government is essential in order to secure the blessings of liberty for ourselves and our posterity. We are not against anonymous speech — to the contrary, we believe strongly in it — but we are against anonymous lawmaking. The people's business must be done in public.

Those who wish to force every civic-minded Washingtonian to vote on a particular issue of the day have no right to employ the instruments of direct democracy (the initiative, referendum, and recall) anonymously.

We welcome today's Supreme Court opinion affirming that the Public Records Act is not unconstitutional, though we wish it were stronger. It's too bad Justice Scalia's concurrence is not the majority opinion.

We thank Secretary of State Sam Reed and Attorney General Rob McKenna (both Republicans!) for fighting the good fight in this case. They stood up for the values we believe in before our nation's highest court, and we are grateful for that, even if we fervently disagree with them on a great many other issues.