Court finds petitioners' rights don't trump open records law

Releasing the names of petition-signers who call for a voter referendum does not render a state open records act unconstitutional as it applies to petitions, the U.S. Supreme Court ruled today.

The 8-1 decision in Doe v. Reed affirmed the ruling of an appellate court, but left open the possibility that the particular petition-signers in this case — who tried to overturn a domestic partnership law in Washington state — might still be able to show that the release is unconstitutional specifically related to this petition, because they are alleging they will be subject to harassment if their names are known. Justice Clarence Thomas was the lone dissenter.

The conservative group Protect Marriage Washington collected 138,000 signatures in an effort to repeal a 2009 domestic partnership law that allowed benefits for same-sex couples. Though the effort was unsuccessful, the organization asked the courts to bar the disclosure of the identities petition signers, arguing they would be subjected to harassment and threats.

In September, U.S. District Court Judge Benjamin Settle ruled that disclosing the signatures could create a chilling effect on signers’ right to anonymous political activity. In October, a three-member panel for the U.S. Court of Appeals (9th Cir.) overturned that decision. Today, the U.S. Supreme Court agreed with the appellate court’s decision.

"Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures," wrote Chief Justice John Roberts for the majority.

Still, the decision will not preclude lower courts from finding that the names of petition signers can be exempt under certain circumstances if parties can show a reasonable probability of harm. "Upholding the law against a broad based challenge does not foreclose a litigant’s success in a narrower one," wrote Roberts.

The Reporters Committee for Freedom of the Press and five other media organizations filed a friend-of-the-court brief in support of disclosure. “Refusing to disclose signatories on a petition is an act of government secrecy and denies citizens the opportunity to evaluate the legislative process,” the brief argued. 

Freedom-of-information advocates say the decision is a step towards preserving government transparency.

“In the shorter-term sense, reporters are happy to still be able to access ballot petitions, which they do more than people realize,” said Kevin Goldberg, legal counsel for the American Society of News Editors and the Association of Capitol Reporters and Editors, which both joined friend-of-the-court briefs in support of disclosure. “In the longer-term sense, we’re glad to see that the Supreme Court is unlikely to disrupt the state freedom of information laws around the country.”