Shortly after 10 a.m. on Wednesday, after decisions are released, the Supreme Court will hear one hour of oral argument in John Doe # 1, et al., v. Reed, et al. (09-559). Arguing for the ballot measure proponents will be James Bopp, Jr., of Bopp, Coleson & Bostrom in Terre Haute, Ind., and for Washington State officials will be the state’s Attorney General, Robert M. McKenna, of Olympia. This is the only case scheduled for argument that day and, unless another case is given unusually expedited treatment later in the Term, this will be the last case argued this Term.
The Supreme Court has sometimes found it necessary to provide anonymity for political activists. The scope of that protection will be tested anew as the Court examines a plea by signers of a petition supporting a ballot measure that they, too, may need to keep their identities secret in order to avoid retaliation, perhaps even a violent response from their opposition. The new case arises in the volatile contact of same-sex marriage.
“Transparency,” one might say, is a new buzz word in American politics and government. But a buzz word that goes all the way back to the ratification drive for the Constitution — the authors of the Federalist Papers, and their adversaries — is “anonymity.” In an age when information travels at warp speed, via the Internet, it is more and more difficult to keep private facts private. But, in that same age, political accountability is often easier to maintain. In a new case that, symbolically, a “John Doe I” and a “John Doe II” have put before the Court, the Justices will find themselves navigating between those Digital Age realities. In the process, they may have to decide what part of the political process, when citizens seek to take government into their own hands, should be shielded from mass media exposure.
On the one hand, individuals who sign petitions to get a policy measure on an election ballot are legislators, in a sense. Like actual members of legislatures who drop a new bill into the hopper, they lay before the legislature their idea for a good new policy — except, in their case, the “legislature” is actually all of the voters who will cast ballots in an initiative or referendum. But, in another sense, they are like voters themselves, signing a petition as if they were casting a vote for a policy measure, and thus expressing a political belief. Real legislators don’t get anonymity for proposing bills, but political activists promoting a cause at the polls have some right of privacy, as the Court has made clear in such decisions as McIntyre v. Ohio Elections Commission in 1995 and Buckley v. American Constitutional Law Foundation in 1999.
About half of the states — twenty-four in all — now have a process for citizen-driven legislation, through an initiative process or a referendum process. At any given time, somewhere in the Nation, a ballot measure organization is circulating petitions for signatures, promoting a cause, or opposing one. It thus is obvious that the constitutional rules that govern that process have widespread impact. Whether those rules should be altered, or reinforced, when the identity of petition signers can be uploaded to the Internet in a matter of seconds, and then distributed as rapidly, is what the Court now faces in a case originating in Washington State.
The Court signaled its interest in this case soon after the current Term opened last October, when the Court temporarily blocked state officials in Washington from publicly disclosing the names and addresses of individuals who had signed petitions promoting a ballot measure — Referendum 71.
Referendum 71 was about the rights of couples involved in so-called “domestic partnerships” — a status often recognized for same-sex couples who are not allowed to get married. In 2007, the Washington legislature had created domestic partnerships, to be formally registered with the state. That status was open to a same-sex couple or, alternatively, to a couple with one member who was at least sixty-two years old. Two years later, the legislature passed a new law — Bill 5688 — that became known popularly as the “everything but marriage” law. It extended to domestic partners all of the legal rights that married couples have (without authorizing actual marriage for same-sex couples). It became law with the governor’s signature in May 2009.
A group that opposes gay marriage, and equivalent rights for same-sex couples, Project Marriage Washington, decided to challenge the new law by testing it in a citizen referendum, Referendum 71. Focusing on the parking lots of heavily trafficked stores, like WalMart and Target, the group gathered more than enough signatures to put the measure on the ballot.
Under state law, signers of petitions for ballot measures must include their name, home address, city and county of residence, and their signature. As an option, they can include their e-mail address. When the signatures are counted by state officials, to decide if there are enough, observers may be present, representing both those who approve and those who oppose the measure at issue. For many years, state officials took the position that the petitions were not to be disclosed publicly. However, the current Secretary of State, Sam Reed, considers them to be public records, and thus open for public inspection under state public records law.
Two groups favoring such disclosure are KnowThyNeighbor and WhoSigned. They sought copies of the Referendum 71 signed petitions, with the specific aim of putting them online, to identify the supporters of the measure. They expected, the groups’ leaders said, that the disclosure would lead to a “personal and uncomfortable conversation” with those who favored Referendum 71 and thus wanted the new domestic partner law scuttled. Project Marriage Washington, joined by anonymous supporters of the measure, sued, and a federal judge blocked the release of the petitions. The Ninth Circuit Court, however, applying what is called “middle level scrutiny,” found that disclosure would not violate any First Amendment rights of speech, association or belief of the backers of Referendum 71. The signatures, the Circuit Court noted, had been gathered in public places, so others could see who supporters were. And, it added, the state made no promise of confidentiality of their identities. Disclosure, it concluded, would help prevent fraud in the referendum process, and contribute to public awareness of those who, by signing a petition, “have taken action that has direct legislative effect.”
The Supreme Court. over the sole dissenting vote of Justice John Paul Stevens, put release of the petitions on hold, and, two weeks later, on November 3, Referendum 71 went before Washington’s voters. A “yes” vote would keep the domestic partnership law, a “no” vote would wipe out off the books. The “yes” vote prevailed, by a 53.1 to 46.9 percent margin.
Because potential disclosure of the signers’ private information had only been put on hold temporarily, Project Marriage Washington and two anonymous signers filed the case in the Supreme Court two days after the balloting.
Petition for Certiorari
Project Marriage Washington and the two “John Does” asked the Court to decide two technical legal questions, but they amount to a plea for full constitutional protection for the privacy of personal identifying information, as well as political beliefs, of petition-signers. First, they urged the Court to impose the most rigorous constitutional standard — “strict scrutiny” — to any compelled public disclosure of their identities and beliefs. That test is whether such disclosure serves a “compelling” government interest, and whether the disclosure is a “narrowly tailored” way to serve any such interest. Second, they argued that the disclosure ordered in this case cannot satisfy that standard, so a final court order against release of the petitions would be justified. What is at stake, the petition argued, was not simply the privacy of their identifying information, but also the fact of their support for a political position — in other words, an expression of their political beliefs and of the political alignment they seek to join.
Under Washington law, the petition argued, the names of and other information about petition signers are disclosed to state officials only for the limited purpose of ensuring that there are enough valid signatures to get a referendum measure on the ballot, and to allow verification of the signatures. The filing also contended that state courts have ruled that petitions are not public records.
Privacy of the records — and thus anonymity for the signers — is necessary, the petition contended, because there is “a growing amount of evidence” that proponents of ballot measures such as Referendum 71, opposing gay rights, are targets for death threats and other forms of violent retaliation. And, summoning up a new technology argument, the petition said that the ease of uploading information to electronic databases, with wide and nearly instant distribution, raises significantly the prospect for retaliation against ballot measure proponents.
The state of Washington urged the Court to pass up review of the case. It noted that the Ninth Circuit had not explained its decision on release by the time the Supreme Court had blocked that release, but had now done so, and it argued that the final reasoning employed by the Circuit Court showed that it was not in conflict with any other decision of an appeals court, and that there is no confusion among the appeals courts about the question.
On the merits, the state contended that there is no compelled disclosure to the public of the signers’ identifying information. The state public records law only applies to the government, and only requires disclosure of government records, the state said. Moreover, the state’s opposition said that public disclosure has already occurred, when the signers put their signatures on a petition in a public place, open to observation by others. Once they perform that act, the state contended, they have left only a very limited “associational” interest. And the state argued that release of ballot measure petitions has been occurring for years, across the country, and yet this is the first case in which privacy for the signers has been raised.
Review of the case also was opposed by Washington Families Standing Together, a group that favored the domestic partner law and had intervened in the case at the Ninth Circuit. It argued, as the state did, that there is simply no dispute among federal appeals courts about the issue at stake. And, the group contended, this case is not a proper one to raise the issue, because “the record is notably incomplete” and “procedurally complicated.” (Another group in the court below, the Washington Coalition for Open Government, waived its right to respond to the petition.)
Two days before the Court was scheduled to consider the Doe petition at the January 15 Conference, the Court, by a 5-4 vote, sent a signal that a majority was concerned about the threat of retaliation if there were widespread publicity surrounding the supporters of ballot measures against same-sex marriage. The Court ordered a halt for a federal judge’s plan permitting televised coverage of the trial in San Francisco of the constitutionality of California’s Proposition 8, banning gay marriage n that state. Part of the majority’s reasoning for doing so was that Proposition 8 backers, some of whom would be called to the witness stand during the trial, had demonstrated that their identification with that controversial measure had led to “incidents of past harassment.” Donors to pro-Proposition 8 groups, the Court’s opinion said, had received “death threats and envelopes containing a powdery white substance.”
Whether or not that perception had any influence on the Court in the Referendum 71 case, the Court promptly granted review of the case at the first opportunity, on January 15. The Court expedited the case on its docket, to assure a ruling during the current Term. Its October order temporarily blocking release of the petition signers’ information is to remain in effect until the Justices reach a final decision.
Picking up on the Court's earlier expression of concern about retaliation against gay-marriage foes and their political activity, and seizing upon the high level of publicity surrounding the dispute over California's Proposition 8, five of the first six pages of the Referendum 71 group's merits brief are devoted to threats against Proposition 8 supporters. The brief, indeed, opened with this sentence: "This case arose in the wake of events in California." The recitation included the profanity used in some of the threats, presumably to add to their authenticity.
When it began discussing the legal merits of the case, the brief used fervent language. At the core of the case, it argued, "lies the First Amendment question of whether, when the sovereign people seek to put a referendum on the ballot, they may be constitutionally compelled to publicly disclose identifying information about themselves, their association, and their belief that a measure should be on the ballot or whether any state interests are satisfied by private disclosure to the government."
Under Washington law, the brief said, ballot supporters are compelled to speak at three levels "“ at the time they sign petitions, when they submit petitions to state officials to be canvassed, and when public disclosure is ordered. The first two levels, it said, do not involve any fear of intimidation or any waiver of rights. It is at the third level, public disclosure, where "there is serous concern over both loss of privacy and intimidation.
Recalling the cases of voter intimidation in the Ku Klux Klan era in the nineteenth century, the Referendum 71 supporters' brief argued that violence used to control elections has been one of the two great evils against republican government, along with corruption. The state of Washington, in defending public disclosure of petition signers, the brief said, "argues corruption and downplays intimidation."
Washington Secretary of State Sam Reed's merits brief leaned heavily on the argument that, when citizens sign a referendum petition, "they are exercising the same legislative power as the elected Washington Legislature, having reserved this power in the state constitution. Signing a referendum petition is a legally operative act." Once such petitions succeed with citizen signers, it noted, state officials have no choice but to conduct an election, and the law that is being referred for citizen approval is suspended in the meantime. A petition signer, it went on, is like a member of the legislature who seconds a motion. "In a legislative body, if there is no second, the motion fails," it commented, adding: "When Washington's citizens legislate directly, if there are not enough signatures, the measure will not qualify to the ballot."
Moreover, the state's merits brief contended that signing a referendum is not like making a speech, or engaging in "expressive conduct" of the kind that enjoys broad First Amendment protection. Rather, it said, a signer has no control over the content of the petition; that is dictated by state law and by the sponsor's choice. Signing a petition is not like circulating handbills about elections, a process that the distributor controls, or about the process of actually circulating the petition, which is a form of core political speech, the state contended. Since the act of signing is not an act of political expression, disclosure of the petition's signers can be judged by a standard of less rigor than strict scrutiny, Reed argued.
The Reed brief also contended that, even though the Referendum 71 signers were claiming that they were only raising a challenge to disclosure of identities in their own case, they actually were making a much broader challenge to any disclosure at any time during any initiative, recall, or candidate nomination process, as well as any referendum, thus arguing against any state public records application to such information.
Like the state, the intervening group, the Washington Coalition for Open Government, argued in its merits brief that the Referendum 71 signers were seeking "sweeping relief," in an attempt to use the Constitution to compel the state of Washington to permit them "to operate the state legislative process in secrecy. There is no right, fundamental or otherwise, to secrecy in the legislative process.No part of the United States Constitution provides for direct popular legislation, and the drafters of the First Amendment expressly decided not to include such a right, or the protection of such a right, within the First Amendment."
The other intervening group, Washington Families Standing Together, made essentially a states' rights argument in its merits brief. States that permit citizen-driven legislative efforts, that brief asserted, are free to control the process. Every state that has such a process, except one (California), makes petition or referendum petitions subject to public disclosure, it commented. Signing such a petition, it added, is neither a private nor an anonymous act, and is entitled, at most, to only middle-level First Amendment protection.
Among amici, the argument for anonymity drew the greater support, numerically (sixteen briefs to nine). Much of that support (though not all) comes from such high-visibility conservative or libertarian groups as the American Center for Law and Justice, Institute for Justice, and Cato Institute. It also draws the support, as would be expected, from Proposition 8 backers in California. Liberal groups, like the Brennan Center for Justice, entered the case in the middle, supporting neither side but urging the Court to take care not to interfere with public disclosure of money in political activity.
Twenty-three states, arguing for state authority to act against fraud in elections, lead the amici supporting Washington State. Also on that side of the case is a wide array of news organizations, arguing the need for access to public records, including election records, as well as online publishers, and a group of gay rights organizations.
The Court, perhaps, has tipped its hand in the case, not only by its order in October, temporarily protecting the Washington signers' privacy, but also by its 5-4 ruling in January in the Proposition 8 TV trial coverage ruling. But both of those actions tend largely to exhibit sympathy for the argument that opponents of gay marriage do face threats and other forms of harassment or outright violence. That sentiment, perhaps, cannot be translated directly into a conclusion that signing a petition is a form of protected political speech.
The Court has never before analyzed, as it must in this case, just exactly what occurs "“ in a constitutional sense "“ when a citizen writes a signature, and enters personal information, on a political petition. The Referendum 71 case presents that issue very directly, with the signers making a vigorous argument that it is a purely expressive form of political speech, while those favoring public disclosure of petitions make an equally vigorous argument that the role of citizen as legislative sponsor is no different from that of an elected lawmaker. To side with the former and against the latter, the Court would have to make a sizeable constitutional leap from past rulings on electoral anonymity. Perhaps some of the Justices voted to grant review of the case precisely anticipating that they might well do just that. The briefing, though, has sharpened the issue, far more than did the content submitted to the Court prior to the October order and that presented before review was granted.
For a Court that has recently shown, especially in the Citizens United v. Federal Election Commission decision in January, that it reads the First Amendment expansively in the context of election campaigns, there may be little hesitancy now in deciding the Referendum 71 case by lengthening that trend, to elevate the constitutional significance of signing a political petition. Much may be revealed on this score at oral argument.
Whether the Court will see this case as a test of the Constitution's role in mediating the heavy political controversy, being waged across the country, over gay rights, is unclear at this point. That controversy, to be sure, has a bearing on the intimidation issue that is so central to the Referendum 71 signers' case.
However, just as central to the other side's argument is a plea for open government, coupled with a plea for state control of their own initiative and referendum processes. Choosing between those two conflicting approaches to the case may be difficult, indeed.