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Supreme Court: No Privacy for Petition-Signers

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By Michael Beckel

The U.S. Supreme Court ruled today that people who sign petitions to get initiatives and referenda on the ballot do not have the right to have their names shielded from public disclosure on an across-the-board basis, although it left the door open for more narrow challenges to disclose on a case-by-case status. 

"Disclosure of [the names of referendum petition-signers] does not as a general matter violate the First Amendment," Chief Justice John Roberts wrote for the majority. "The State's interest in preserving the integrity of the electoral process suffices to defeat the argument that [Washington's Public Records Act] is unconstitutional with respect to referendum petitions in general."

Roberts continued, "We leave it to the lower courts to consider...  the signers’ more focused claim concerning disclosure of the information on this particular petition, which is pending before the District Court."

The case arose when conservatives brought forth a ballot measure in Washington last year known as Referendum 71.

The referendum was designed to keep a state law expanding the rights and responsibilities of same-sex couples from going into effect. During the process to get Referendum 71 on the ballot, Protect Marriage Washington collected more than 138,000 signatures, often in public places like the parking lots of Wal-Marts and shopping centers. Other groups then attempted to gain access to the list of signatories under Washington's Public Records Act in the run-up to the election.

High-profile conservative attorney and member of the National Republican Committee James Bopp filed suit against Washington Secretary of State Sam Reed on behalf of Protect Marriage Washington, along with two anonymous John Does who had signed the ballot measure petitions. In this case, known as John Doe v. Sam Reed, Bopp argued the petition-signers faced such a great potential of harassment and violence that they deserved to be exempted from the state’s public disclosure statute, the Public Records Act, which was enacted in 1972.

Bopp had argued in federal district court that the signers of all ballot measure petitions -- not just the signers who placed Referendum 71 on the Washington ballot -- face so great a potential for harassment that signatories should be exempted universally for disclosure requirements.

The federal district court earlier agreed with Bopp’s arguments, but a federal appeals court rejected Bopp’s universal claim. As OpenSecrets Blog reported in April, his argument about across-the-board harassment threats for all petition signers then landed in the halls of the U.S. Supreme Court.

Bopp's blanket claim that the Public Records Act was unconstitutional in all instances regarding the release of information about petition-signers in legal terminology is known as a “facial challenge.”

The Supreme Court’s ruling today rejected the facial challenge of Bopp and Protect Marriage Washington, although they left open a more narrow “as-applied challenge,” in which Bopp can argue that the signers of this particular ballot measure deserve greater protection in this particular instance.

That as-applied challenge argument will now be litigated at the federal district court level.

Seven other justices concurred with Roberts' ruling. Only conservative Justice Clarence Thomas dissented.

"In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records Act severely burdens [First Amendment rights] and chills citizen participation in the referendum process," wrote Thomas.

"Given those burdens, I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process," he continued.

Thomas was also the sole dissenting voice in the disclosure-related portion of January's high-profile campaign finance case, Citizens United v. Federal Election Commission.

Currently, 23 states have initiative or referendum processes by which citizens can enact legislation. Only one of these -- California -- does not make public the names of those who petition the state to include such measures on the ballot.

Along with the Brennan Center for Justice at New York University's School of Law and the Sunlight Foundation, the Center for Responsive Politics filed an amicus brief with the high court that supported neither party but rather implored justices not add any new impediments to campaign finance disclosure.

At least one court observer thinks today's ruling means challenges in the near future to campaign finance disclosure regulations face an uphill battle.

"The decision is perhaps most significant for what it means for disclosure provisions under consideration in the pending campaign finance legislation that would respond to the Court’s Citizens United decision," wrote Tom Goldstein on "There seems a solid group of five votes to uphold virtually any disclosure regime."

You can read more background on the case from here, as well as our dispatch from oral arguments in April here on OpenSecrets Blog.


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