SCOTUS: Petition signatures not protected speech

by: Gerald Weinand

Thu Jun 24, 2010 at 18:13:05 PM EDT

The ruling may indicate how the SCOTUS will view challenges to cases involving laws that force the disclosure of donors to campaigns, such as the investigation by the Maine Ethics Commission of the actions of the National Organization for Marriage (NOM) in 2009.

The Court held, by an 8 to 1 vote, that there are no 1st Amendment protections that signatories to petitions will remain anonymous, excepting when it can be demonstrated that such disclosure would have a high probability of engendering harassment to the signers.

Writing at SCOTUSBLOG, Tom Goldstein has this summary of the Washington State case involving R-71. From it:

The district court ruled for the plaintiff on the first, broadest argument. It did not reach the narrower claim. The Ninth Circuit reversed. Today, the Supreme Court agreed with the Ninth Circuit (pause for dramatic effect), but remanded for the lower courts to consider the plaintiffs' narrower argument regarding the circumstances of this particular gay-rights referendum. This outcome seemed likely to me from the oral argument, which I discussed in this post:  Not so fast in Doe v. Reed.

Preliminarily, the Court held that the disclosure law is subject to First Amendment scrutiny.  Signing a petition, the Court reasoned, is an expressive act - expression of a political view - that implicates the First Amendment. That said, the level of scrutiny must account for states' wide latitude in implementing their voting systems, as well as the fact that disclosure does not itself prevent speech. The Court held that disclosure of referendum petitions generally survives constitutional scrutiny because it helps to combat fraud and eliminate mistakes (because the public is able to review the signatures) and because it promotes governmental transparency and accountability.

Citing Buckley v. Valeo - which held that campaign finance disclosure requirements are generally constitutional, but left open the prospect of a suit challenging a particularly onerous requirement - the Court nonetheless left open the possibility that the plaintiffs could prevail on remand in their challenge to disclosure with respect to this particular referendum. The Court thus held that the plaintiffs' claim that disclosure here would have the purpose and effect of facilitating harassment of individual signatories should be addressed in the context of that narrower claim.

You can find the actual opinion here: Doe v. Reed. Chief Justice Roberts wrote the Court's opinion, with several justices writing concurring opinions (Thomas was the lone opposition). Striking is the concurring opinion from Justice Antonin Scalia, who wrote:

Plaintiffs claim the First Amendment, as applied to theStates through the Fourteenth Amendment, forbids the State of Washington to release to the public signed refer-endum petitions, which they submitted to the State in order to suspend operation of a law and put it to a popular vote. I doubt whether signing a petition that has the effect of suspending a law fits within "the freedom ofspeech" at all.

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Our Nation's longstanding traditions of legis-lating 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.

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When a Washington voter signs a referendum petition subject to the PRA, he is acting as a legislator. The Washington Constitution vests "[t]he legislative authority" of the State in the legislature, but "the people reserve to themselves the power . . . to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature." Art. 2, §1. This "referendum" power of popular legislation is exercised by submitting a petition, in accordance with certain specifications, to the Washington secretary of state with valid signatures of registered voters in number equal to or exceeding four percent of the votes cast in the last gubernatorial election. The filing of a referendum petition that satisfies these requirements has two legal effects: (1) It requires the secretary to place the measure referred to the people on the ballot at the next general election; and (2) it suspends operation of the measure, causing it only to have effect 30days after it is approved during that election. A voter who signs a referendum petition is therefore exercising legislative power because his signature, somewhat like a vote for or against a bill in the legislature, seeks to affect the legal force of the measure at issue.

Scalia argues that the act of signing a petition that may - at least temporarily - stay a duly enacted law transforms an ordinary person into a citizen legislator. To extend such logic to those that fund signature gathering efforts and subsequent political campaigns, their anonymity is not protected either.

The SCOTUS referred the case back to the District Court to determine if disclosing the names of those that signed petitions to place R-71 on the ballot have a reasonable fear of harassment should their names become known.