Upon entering or leaving my neighborhood grocery store, I am usually confronted by either children selling cookies or individuals seeking my signature or vote on a variety of political causes. Even thought I am more likely to purchase a box of cookies than I am to sign a political petition, I have never considered the privacy implications of signing a petition, until now.
In Doe v. Reed, __ U.S. __ (Decided June 24, 2010), the Supreme Court addressed the narrow question of whether disclosure of referendum petitions would violate the First Amendment. The facts are fairly straightforward. In May of 2009, the State of Washington enacted a bill that would expand the rights and responsibilities of domestic partners, including same-sex domestic partners. This bill, known as Senate Bill 5688, was drafted by the legislature and signed into law by Washington’s Governor Christine Gregoire.
Seeking to repeal the bill, a group by the name of Protect Marriage Washington started collecting signatures in order to place a referendum on the ballot that would give the voters the opportunity to vote on the bill. Protect Marriage collected the required signatures and the referendum was placed on the ballot. Prior to election night, the Secretary of State received several public records requests seeking disclosure of the names of the individuals who signed the petition. This information would include the names, address and county of residence for each of the 137,000 signatures submitted. The Washington Public Records Act (“PRA”) makes available for public inspection “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function.” Since the Secretary of State considered the referendum petition to fall under that definition, the identity of those who signed the petition was considered a public record. Protect Marriage objected to the disclosure citing privacy concerns and sought a preliminary injunction to enjoin the disclosure of the petition signatories.
In an 8-1 decision, the Supreme Court held that the disclosure of referendum petitions do not, as a general matter, violate the First Amendment. Writing for the majority, Chief Justice Roberts wrote:
“Public disclosure thus helps ensure that 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.”
As a result, the Court held that the State’s interest in preserving the integrity of the electoral process is sufficient to defeat the argument that the PRA is unconstitutional when applied to referendum petitions.
On the surface, this holding seems to be relatively clear-cut. However, when you dive a bit deeper into the Court’s opinion, you find that this issue is far from over On appeal to the Ninth Circuit, the plaintiff asserted two key arguments: first, that the PRA was unconstitutional when applied to referendum petitions in general and second, that the PRA was unconstitutional when applied this specific petition. Since the Appellate decision was based solely on the first argument, the Supreme Court declined to address the second argument, which is arguably the stronger of the two. Therefore, in the event this case returns to the Supreme Court, would the outcome remain the same?
In Reed, Chief Justice Roberts acknowledged that those resisting disclosure can prevail under the First Amendment if they can show “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Reed citing Buckley v. Am. Constitutional Law Found. (Buckley II), 525 U.S. 182, 197, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). In this case, the Respondents acknowledged their intent to publicly identify those who had signed the petition and broadcast the signers’ political views via a searchable internet website. This, plaintiff argued, would be a blueprint for harassment and intimidation, effectively chilling future political participation. However, a number of the Justices seemed to disagree. Justice Stevens argued that “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” and that such harassment “is unlikely to occur in cases involving the PRA.” Further, Justice Sotomayor, who was joined by Justice Ginsburg and Stevens, viewed the burden on public speech as “minimal” and wrote that “disclosure of the identity of petition signers, moreover, in no way directly impairs the ability of anyone to speak[.]” Even Justice Scalia, compared the act of signing a petition to the act of legislating, which he noted, “Our Nation’s longstanding traditions of legislating and voting in public refute the claim that the First Amendment accords a right to anonymity in the performance of an act with governmental effect.”
Apart from Justice Thomas, who believe the PRA was unconstitutional as applied to referendum petitions in general, the only other support came from Justice Alito. Even though he voted with the majority, Justice Alito noted that “plaintiffs in this case have a strong argument that the PRA violates the First Amendment as applied to the Referendum 71 petition.” Since it appears that at least five of the justices seem to be predisposed toward rejecting even a narrow First Amendment challenge to the PRA, its seems unlikely that signatories to the referendum petition will be able to remain anonymous. Accordingly, anyone who is deciding whether to sign a referendum petition, should decide if they want to be publicly identified with that particular political issue.