Justices skeptical of blanket anonymity for petition-signers

by on April 28, 2010  •  In Supreme Court

One can never be certain of anything from an oral argument, but it sure sounds like the Protect Marriage advocates who were seeking to block release of the names of persons who signed a petition to put Referendum 71 (which would have repealed the Washington state domestic partner law) on the ballot got shellacked this morning at the oral argument of Doe v. Reed. [Here's the transcript.] Early reports, including this one by Lyle Denniston at SCOTusblog, emphasized that James Bopp, arguing for those seeking anonymity, drew mostly hostile questions, including from Justice Scalia.  However, Tom Goldstein, also writing at SCOTUSblog, points out that the case as litigated below presented two issues: whether a law permitting release of signers' names is facially (i.e. always) unconstitutional, and whether releasing names in the circumstances of the R-71 vote should have been permitted.  Only the first question is now before the Supreme Court. Goldstein agrees with Denniston that the Court is unlikely to strike the Washington statute as facially unconstitutional, but he is predicting that there will be another round after that, in the lower courts, on whether the R-71 names should be made public. [More background here.]

Excerpts from both Denniston and Goldstein after the jump –>


Justice Antonin Scalia, using history, sarcasm and political taunts, laid down a barrage of objections Wednesday to a plea that the Supreme Court create a new constitutional right of anonymity for individuals who sign petitions to get policy measures onto election ballots.  When he was finished, the strong impression was that it might be exceedingly hard to gather a five-vote majority to establish such a right, even though the plea got the fervent support of Justice Samuel A. Alito, Jr., and some implied help from Chief Justice John G. Roberts, Jr. …

Declaring that the rough-and-tumble of democracy is not for the faint-hearted, and referring to what he called the “touchy, feely” sensitivity of some political activists, the Justice said “you can’t run a democracy” with political activity behind a First Amendment shroud.  “You are asking us to enter into a whole new field,” Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay-rights petition.  Politics, the Justice went on, “takes a certain amount of civic courage.  The First Amendment does not protect you from civic discourse — or even from nasty phone calls.”

The petition-signers represented by Bopp have argued that disclosure of their names and other identifying information they put on petitions will subject them to harassment, and even to violence.  The lawyer told the Justices, for example, that one of the chief sponsors of the anti-gay marriage referendum in Washington had his family sleep in the living room to protect them from retaliation.  Bopp’s plea clearly resonated with Justice Alito, but his was the only voice on the bench explicitly in support of the claim to anonymity.

What the overall argument made clear is that the case was, in fact, shaping up as a test of whether the Court was prepared to expand the zone of privacy for those who choose to get involved in the nation’s political fray.  The state of Washington has worked to make that the central issue before the Court, arguing that the act of signing a referendum petition is, at its core, a legislative act and that the state has an important interest in having transparency for the legislative process that occurs in putting ballot measures before the voting public. …

But Justice Scalia was, if anything, a more aggressive advocate for that view of the case.  “A petition-signer,” he said, “is taking part in the legislative process.”  He suggested that there was no court case holding that the First Amendment shields “activity that consists of the process of legislation.”  In fact, Scalia said, “for the first century of our existence” even casting a ballot was done in public, and ballots were of different colors so everyone could know how an individual had voted in a given contest….


The [argument] did not present the significantly narrower question whether the signatories to this referendum may be disclosed.  That issue – presented by Count II of the plaintiffs’ complaint – was not resolved by the lower courts.

The argument was heavily oriented towards the State because only one Justice – Justice Alito – seemed to favor the view that the First Amendment would broadly prohibit all such disclosures.  The other members of the Court seemed quite clear – and the issue was framed by a very early question by the Chief Justice that this was only a “facial” attack – that there would be many instances in which disclosure would not implicate the harassment-related concerns of this initiative and for which disclosure of the signatories would not be worrisome.

The analogy repeated a few times in the argument was that it is generally true that the government may require the disclosure of campaign contributions, but it has also held open the possibility that a party may justify nondisclosure based on unique circumstances.

Notably, it was two of the more liberal members of the Court who seemed quite interested in preserving the possibility of an as-applied challenge to disclosure related to this particular referendum.  Justice Breyer said almost nothing, but asked a pointed question to the State’s Attorney General about whether civil rights advocates in Little Rock, Arkansas could have been forced to disclose their advocacy of a hypothetical referendum to support re-opening a school that had been closed in an effort to maintain segregation.  And Justice Ginsburg repeatedly returned to the distinction between the two counts of the complaint….

I therefore expect the Court’s decision to be unanimous or nearly so in agreeing that the issuance of an injunction on Count I of the complaint was inappropriate and that the case should return to the district court for further proceedings.  Beyond that, the Court may break into three separate camps:  that as-applied challenges should be easy (Justice Alito); that they should be exceptionally hard or prohibited altogether (Justice Scalia);  and that a middle ground is appropriate.  Or the Court may finesse the issue of the proper standard by leaving it unresolved.

I think there is a significant chance that a majority of the Court will signal that the district court should on remand consider very seriously the request for an injunction as to this referendum.  And so there is a realistic chance that the State of Washington’s victory in this case will be short-lived.

In the end, however, I doubt that the opinion which results from today’s argument will be the last word on the disclosure of referendum signatories, and there is a significant chance that the case will be back in the Supreme Court in a year or two.


One Response to Justices skeptical of blanket anonymity for petition-signers

  1. TomTallis April 29, 2010 at 4:35 PM

    One of the things not addressed in the arguments that I’ve read is the need for concerned individuals to ascertain whether their names have been placed on petitions fraudulently. It happened to me once, on the petition that put Prop H8 on the ballot in California and if I hadn’t been able to check, my name would have appeared as a supporter of a measure that I vehemently opposed (I married my same-sex partner in that brief period of sunshine between the California supreme court decision and the passage of Prop H8).

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