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Today’s decision in Doe v. Reed

By a broad eight-to-one majority in an opinion by the Chief Justice, the Supreme Court today held in Doe v. Reed that signatories of referendum petitions generally do not have a constitutional right – i.e., a right that would trump state open government laws – to keep their identities private.  But the Court held – again, by the same broad majority – that courts should consider in any given case whether a particular referendum presents sufficiently unique circumstances that anonymity is required.  It therefore permitted the claim to anonymity in this case, which involves a referendum on gay rights, to proceed in the lower courts.  But their chances of prevailing appear very slim, as five members of the Court either expressed significant doubts about their claim or expressly rejected it.

Washington law allows citizens to change state law by referendum.  Four percent of the electorate must sign a petition to qualify the referendum for the ballot.  In 2009, a new state law expanded the rights of same-sex domestic partners.  Opponents collected roughly 137,000 signatures supporting a referendum to repeal the law, qualifying the ballot.

Another provision of Washington law treats referendum petitions as public records subject to disclosure.  Proponents of this referendum filed suit in federal court to block disclosure, however.  They made two arguments.  First, there is always a constitutional right to anonymity for signatories.  Second, at the very least there is such a right in this particular case.

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.

There were several separate opinions.  Justice Alito wrote a separate concurrence that is quite sympathetic to the plaintiffs’ as-applied challenge on remand.  Justice Sotomayor wrote a concurring opinion, joined by Justices Stevens and Ginsburg, that is very doubtful about that challenge.  Justice Stevens also wrote his own concurring opinion, joined by Justice Breyer, to make the same point, albeit perhaps not as strongly, while Justice Breyer wrote a separate concurring opinion indicating that he doesn’t think that Justice Stevens’ opinion is inconsistent with the Chief Justice’s opinion.  Justice Scalia wrote a concurring opinion which takes the position that such a First Amendment claim could never prevail.  Justice Thomas was the only dissenter; he would have held that the plaintiffs prevailed on their broad facial challenge to the disclosure provision.

The plaintiffs, having lost their broad facial claim, thus also face significant difficulty in prevailing in their remaining challenge to the disclosure of their identities with respect to this specific referendum.  Justices Thomas and Alito are obviously sympathetic to that claim.  But five Justices – a majority of the Court – take the opposite view; Justice Scalia rejects it outright and the four more liberal members of the Court express significant doubts about the claim’s viability.

As I mentioned in my earlier post, 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.  There seems a solid group of five votes to uphold virtually any disclosure regime.  But today’s ruling does not suggest that any member of the Citizens United majority would retreat from that decision to uphold provisions limiting corporate expenditures in elections.

Cases: Doe v. Reed