Doe v. Reed, The Right to Remain Anonymous when Signing a Ballot Initiative: Oral Argument Analysis

[UPDATE: DECISION here]

Today's oral argument at the United States Supreme Court in Doe v. Reed (transcript here) revealed some skepticism about the claim that signing a petition should be protected by the First Amendment in order to avoid harassment. 

The background facts can be a bit confusing.  In 2009, the Washington legislature passed SB 5688, expanding nearly all state-wide spousal rights and responsibilities to registered domestic partners, and commonly known as the “everything but marriage” law.   Opponents of the legislation sought to negate SB 5688 through a ballot initiative, Referendum 71.   Under Washington law, like most states that allow voter-initiated referendums, the process requires a certain number of valid signatures on petitions supporting the ballot initiative process.  The Secretary of State certified the Referendum for the November 2009 election with approximately 1,000 signatures to spare and an almost 12% error rate (signatures rejected) and prepared the ballot summary: A YES vote on Referendum 71 APPROVED SB 5688 expanding domestic partnership. Referendum 71 passed and SB 5688 became law.  

What is at issue in Doe v. Reed, however, is the disclosure of the signatures on the petitions.  

The Washington Public Records Act (PRA),  RCW 42.56, governs the disclosure of public records.  The state contends that the petitions with signatures are public records that need to be certified before the referendum can be placed on the ballot, and also contends that the signature gathering was done in public places and presented to the Secretary of State in a public forum.  The challengers to PRA, the "Does" and Protect Marriage.org contend that the disclosure of the signatures violates the First Amendment: the signing of a petition is core political speech subject to strict scrutiny and that the state's interests in disclosure are not compelling.  One issue is what, if anything, does the signature mean?  During oral argument there was some discussion that a signature on a petition supports placing the issue before the voters and does not necessarily mean anything about the desired outcome, but there seemed to be little disagreement that there was a very strong correlation.

The challengers heavily rely upon the threat of intimidation, discussing in their briefs events surrounding California's Proposition 8.  Court watchers will also recall that the Supreme Court refused to allow the televising of the Proposition 8 trial in federal court; an opinion from the trial judge is still pending. Indeed, at times during the oral argument, members of the Court seemed to believe that the case arose in California rather than Washington.  However, there seemed to be little evidence in the record about intimidation in Washington and some procedural reasons why none was presented.   Moreover, this might be better suited to an as-applied challenge to the statute rather than a facial one:  "This Court ruled as recently as Citizens United that such situations should be evaluated on a case-by-case basis to evaluate the reasonable probability of threats, harassments, and reprisals,"  answered the Attorney general of Washington in response to a question from Justice Breyer.

Arguing for the Does and Protectmarriage.org, James Bopp began : "No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations."

He was quickly interrupted by Justice Scalia who inquired about the analogy to campaign contributions, with Bopp agreeing and citing Buckley v. Valeo and Scalia asking why that doesn't fall within Bopp's principle that no person should be exposed to criticism for his political beliefs.  Indeed, Scalia expressed much skepticism regarding Bopp's argument:

the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.You are asking us to enter into a whole new field where we have never gone before. 

Scalia later derided the "touchy-feely, oh, so sensitive" sentiments, concluding that "you can't run a democracy this way, with everybody being afraid of having his political positions known."  

Justice Ginsburg inquired about the list of signatures as available to the organization, noting that the signatures on the petition could be used for marketing purposes, to which Mr. Bopp agreed.  

There was also a bit of a rebuke from Justice Kennedy:

JUSTICE KENNEDY: Well, let me -- let me ask you, could the opponents of a particular ballot measure organize a boycott for -- and picket businesses whose managers had supported that boycott.
MR. BOPP: Yes.
JUSTICE KENNEDY: Had supported that initiative?
MR. BOPP: Yes.
JUSTICE KENNEDY: Well, if that's -- if that's so, then under Claiborne Hardware, which I -- I notice you didn't cite in your brief, but if -- if that's so, then it seems to me that the State's -- or that -- that the signers' interest in keeping their names private is somewhat diminished.

In addition to the fraud rationale for requiring disclosure, Justice Stevens posed a public debate rationale:

JUSTICE STEVENS: Isn't there another possible public interest? Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?
Is there public interest in encouraging debate on the underlying issue?
MR. BOPP: Well, it's possible, but we think this information is marginal.

Justice Alito, questioning Robert McKenna who argued for the State of Washington, seemed to accept the state's interest in preventing fraud, but pushed vigorously against the public interest in knowing who is supporting the election:

JUSTICE ALITO: Well, but how far does that go? When I asked whether you could -- you want to know the religion of the people who signed? No, you can't do that. How much more demographic information could be collect -- could be -- does the -- does the State of Washington have an interest in making publicly available about the people who support this election?  Let's say it's -- it's a referendum about immigration. Does the State of Washington have an interest in providing information to somebody who says, I want to know how many people with Hispanic names signed this, or how many people with Asian names signed this? Is that -- that what you want to facilitate?

Before oral argument, it seemed to be easy to think about the signatures on the petitions by analogy:  Is the signature more like a legislative act, with little if any First Amendment protection given the countervailing interests of  open government.   Or more like an act of voting, with more First Amendment protection.  But during oral argument, this dichotomy broke down, especially given the historical appeals to secret voting as a recent development and not uniform in the United States.  

If the opinion reflects the oral argument, the state of Washington will most likely prevail.

RR