US Supreme Court Shields WA Referendum-71 Petitioners

On Thursday October 22nd, the Supreme Court ruled 8-1 (Justice Stevens dissenting) in Doe v. Reed (pdf)to grant Protect Marriage Washington's appeal for an injunction against Washington State's Secretary of State Sam Reed from revealing the names of the 138,500 people who signed petitions to place Referendum 71 (which would repeal that state's comprehensive domestic partnership statute) on the November 3rd ballot.

The Supreme Court overruled a quite good decision (pdf) from a 3-judge panel of the 9th Circuit which had ruled that signing a petition anonymously is not protected under the First Amendment. In a unanimous decision the 9th Circuit Court said:

We conclude that each of the State’s asserted interests is sufficiently
important to justify the PRA’s incidental limitations on referendum petition
signers’ First Amendment freedoms. See O’Brien, 391 U.S. at 376-77. We
conclude also that the incidental effect of the PRA on speech is no greater than
necessary. See Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (holding that a
restriction need not be the least restrictive means of furthering the State’s interest
to survive intermediate scrutiny).

Finally, no one has claimed that the State’s interests are at all related to the
suppression or regulation of expression. The stated aim of the PRA, which itself
was passed through the initiative process, is to keep the citizens “informed so that
they may maintain control over the instruments that they have created.” Wash.
Rev. Code § 42.56.030. There is no indication that despite this clear statement, the
PRA was nonetheless intended to suppress free expression.

Accordingly, we hold that the PRA as applied to referendum petitions does
not violate the First Amendment.

Unfortunately, the High Court's action means that Referendum 71 will be decided without the information of who initiated the process being revealed and even whether the measure was properly qualified.

However, the legal dispute over whether petition signatories can have their names shielded is very much alive, and appears in a front page story in today's Los Angeles Times by David Savage, that paper's excellent court reporter.

Several constitutional (and election law) experts are quoted expressing doubt over the proposition that Protect Marriage Washington's legal position will eventually prevail:

First Amendment scholar Eugene Volokh of UCLA questioned whether petition signers have a constitutional right to anonymity.

"As a matter of 1st Amendment law, you have the right to speak anonymously but you don't have a constitutional right to essentially engage in a legally significant action anonymously," he said. "The state can demand you identify yourself on a petition, and at that point it seems the state is entitled to publish it."

Signing a petition is more akin to a lawmaker's vote, which is usually required to be made in public so the citizenry can monitor the progress of the laws that will govern them, legal analysts say.

But Richard Hasen, a Loyola law professor, noted that the Supreme Court in the past has protected civil rights groups and socialists from revealing the names of their members because of fears they could be harassed and intimidated.

"The court would not necessarily construe signing a ballot measure as a 1st Amendment-protected activity," Hasen said. "But if it is, in fact, true that signers face harassment, I think that's troubling."

I'd love to see a full hearing on whether people who have signed petitions have been harassed or not. In Proposition 8, it was the names of donors to Proposition 8, not the names of the 1.1 million people who signed the petitions that were revealed and led to boycotts.

The question is whether the Court will grant certioriari on this legal question after the election, when the question may be moot (if the Referendum is approved). I hope that they do.