From the Summer 2010 issue of The News Media & The Law, page 10.
Individuals who sign voter referendums do not have a blanket constitutional right to insist that their identities not be released under public records laws, the U.S. Supreme Court concluded in June when it ruled that signatories in an effort to repeal a Washington state domestic-partnership law could potentially be disclosed to the public.
Though the 8-1 decision in Doe v. Reed affirmed the ruling of a federal appellate court that favored disclosure, it left open the possibility that the particular petition signers in this case might still be able to show that the public release of their identities is unconstitutional if there is a reasonable probability it would subject them to harassment.
The appeal was brought by conservative group Protect Marriage Washington, which had collected 138,000 signatures in a successful effort to force a voter referendum on a law that gives registered same-sex couples the same state rights as married heterosexual couples. The referendum subsequently was voted down, leaving the law in effect. The organization asked the courts to bar the disclosure of the identities of signatories by arguing that they would be harassed and threatened for supporting the petition.
U.S. District Court Judge Benjamin Settle in Sept. 2009 ruled that disclosing the signatures could create a chilling effect on the signers’ right to anonymous political activity, but the next month a three-judge panel of the U.S. Court of Appeals in San Francisco (9th Cir.) overturned that decision. In its June 24 ruling, the U.S. Supreme Court agreed with the Ninth Circuit’s decision that there are important reasons why petitioners’ identities should be publicly available.
“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,” Chief Justice John Roberts wrote for the majority.
Roberts also wrote that a state’s interest in preserving electoral integrity is not limited to combating fraud and it “extends more generally to promoting transparency and accountability in the electoral process, which the State argues is ‘essential to the proper functioning of a democracy.’”
During oral arguments in April, Justice Antonin Scalia had alluded to the court’s conclusion, calling the argument that signatories should be shielded from criticism “touchy-feely.”
“Running a democracy takes a certain amount of civic courage,” Scalia told Protect Marriage Washington attorney James Bopp Jr. “[T]he First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate or take part in the legislative process.”
Still, the decision will not preclude lower courts from finding that the names of petition signers can be exempt under certain circumstances if parties 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,” Roberts wrote.
The Reporters Committee for Freedom of the Press and five media organizations filed a friend-of-the-court brief in support of the public disclosure of petition signers. “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 toward 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 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.”
At least one state’s high court had already agreed to consider whether the names on a voter-referendum petition can be disclosed to the public before Doe v. Reed was decided. The West Virginia high court is set to hear arguments this fall in a local newspaper’s freedom-of-information case against a county clerk who has refused the newspaper’s public records request for the names of people who signed a petition on a zoning referendum.
In that case, the county clerk claimed that the signatures were collected by a private group before being submitted to the government and thus cannot be released to the Shepherdstown Observer. A lower court agreed.
In both the West Virginia case and Doe, the Reporters Committee and other media organizations argued that citizens involved in the referendum process are no longer acting as private citizens, but rather as legislators and state actors actively attempting to revoke legislation, and records of such state action are clearly public documents.
While the West Virginia case deals with whether any document prepared by an outside agency and later filed with the government can be released, the clerk in that case had originally made the same argument against disclosure as the Doe petition-signers—that release would violate their privacy rights—before switching gears to claim that the records were not public because they were prepared by a third party. The lower court addressed both arguments.
Although the vote on the county zoning referendum that is at the center of the West Virginia case has already occurred, whether the petition names are public record has much broader implications for state freedom of information laws, especially in light of the Doe decision.
Freedom-of-information advocates say the Supreme Court decision in Doe underlines the power of states to ensure transparency and access to public records.
“State public record access laws were immeasurably strengthened by the Court’s attitude and decision in Doe,” said Stephen Skinner, who represents the Shepherdstown Observer in the West Virginia case. “There is no doubt that Doe is clear precedent and I hope that the West Virginia Supreme Court takes the issue of transparency in democracy as seriously as the U.S. Supreme Court,” he said.