USSC Ruling: Releasing Petition Signers' Names Does Not Violate First Amendment

[BobG]

The Supreme Court released their decision on http://www.supremecourt.gov/opinions/09pdf/09-559.pdf and found that releasing the names of the people that sign ballot initiative petitions does not violate their First Amendment Rights.

The case:

The state of Washington passed a law (Senate Bill 5688) expanding the rights and responsibilities of state-registered domestic partners, including same-sex domestic partners. In response, a group called Protect Marriage Washington started a petition drive to put a bill on the ballot to repeal SB 5688. The group obtained enough signatures to get the initiative put on the ballot, which prompted several groups, including Washington Coalition for Open Government (WCOG) and Washington Families StandingTogether (WFST). Two entities, WhoSigned.org and Know-ThyNeighbor.org, issued a joint press release stating their intention to post the names of the petition signers online, in a searchable format - the purpose being to allow the public to engage signers in a debate on the merits of the underlying law (i.e. - engage in the same harrassment tactics that occurred in California in response to Proposition 8). The petition sponsor and several (anonymous) signers sought to prevent the public release of the petitions for obvious reasons.

The first problem with this case is that the petition sponsors included 2 counts in their motion. The first was that the Public Release Act requiring release of the signatures was unconstitutional when applied to referendum petitions. The second was that release “is unconstitutional as applied to the Referendum 71 petition because there is a reasonable probability that the signatories . . . will be subjected to threats, harassment, and reprisals.” This gave the petition sponsors two bites at the apple, since if they lost on the general Count I, they still had a chance to prevent release on their particular petition in Count II.

The lower court agreed with Count I, making it unnecessary to rule on Count II. Groups desiring release appealed the decision, with it winding up in the USSC. Even Alito acknowledges that the signors should be able to gain exemption from the PRA for their specific petition, given that groups requesting the signatures make no secret of what they intend to do with them once they obtain them (Alito concurrence, page 21). Unfortunately, the only decision to appeal or the USSC to decide is the more general Count I.

But, the case does raise some questions about First Amendment rights, the rights of petition signors, and the use of secret ballots in elections.

As Scalia noted (page 6 of his concurrence), there is no right to a secret ballot in elections, nor is there a right to secrecy in signing referendum petitions.

Legislating was not the only governmental act that was public in America. Voting was public until 1888 when the States began to adopt the Australian secret ballot... We have acknowledged the existence of a First Amendment interest in voting..., but we have never said that it includes the right to vote anonymously. The history of voting in the United States completely undermines that claim.

...

The new paper ballots did not make voting anonymous... Initially, many States did not regulate the form of the paper ballot. ... Taking advantage of this, political parties began printing ballots with their candidates’ names on them. They used brightly colored paper and other distinctive markings so that the ballots could be recognized from a distance, making the votes public. ... Abuse of these unofficial paper ballots was rampant. The polling place had become an “open auction place” where votes could be freely bought or coerced. ... Employers threatened employees. Party workers kept voters from the other party away from the ballot box. Ballot peddlers paid voters and then watched them place the ballot in the box.

Best of all are Scalia's closing comments:

For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously ... and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

While the decision rejects the idea that the Public Records Act is unconstitional in its requirement that petition signatures be released to the public, it does note that there is no constitutional requirement to release the names, either, meaning the proper remedy is to amend the PRA to exempt petition signatures from public release.

I have to admit the logic used to reach the decision was correct and I agree with the decision, but the case raises huge issues of how the internet impacts democracy. It's unconscionable that a group can obtain your signature, find your address (and maybe even your phone number) through a google search, and then print up a map so the person (or a carload of persons) desiring to engage you "in a debate on the merits of the underlying law" can drive right up to your house, ring your doorbell at 2 AM, and engage you in a debate over why you signed such a stupid petition (In other words, Washington's Public Release Act needs serious attention regardless of the USSC decision). As noble and brave as Scalia's comments sound, I just find them to be totally out of touch with the world we live in today with the technological tools available to be readily used for harrassment of political opponents.

 

[turbo]

We are having a related tussle here in Maine, currently.

http://www.onlinesentinel.com/news/state-housepanel-rejects-call-to-end-marriage-money-probe_2010-06-24.html

The National Organization for Marriage dumped over $2M into this little state to push a peoples' referendum that would overturn Maine's new same-sex marriage law. By law, if a group spends over $5K in an election, they are required to file financial disclosures with the state identifying the donors. NOM did not file such a disclosure, and is now stonewalling the ethics committee that is reviewing its activities, refusing to release the identities of donors.

 

[BobG]

We are having a related tussle here in Maine, currently.

http://www.onlinesentinel.com/news/state-housepanel-rejects-call-to-end-marriage-money-probe_2010-06-24.html

The National Organization for Marriage dumped over $2M into this little state to push a peoples' referendum that would overturn Maine's new same-sex marriage law. By law, if a group spends over $5K in an election, they are required to file financial disclosures with the state identifying the donors. NOM did not file such a disclosure, and is now stonewalling the ethics committee that is reviewing its activities, refusing to release the identities of donors.

NOM will lose based on the Citizen's United case and the Doe v Reed case.

This just raises the whole question of how politics is conducted (campaign contributions, petition signings, secret ballot in elections, reliable voting machines) all over again. The issue needs to be addressed as a whole, in light of today's environment, and in a way that would pass constitutional muster.

The idea that politics should wind up reverting back to abuses similar to those that brought on the secret ballot, except with more sophisticated tools, is just a bizarre outcome.

 

[TheStatutoryApe]

The point of a petition is that you are putting your voice behind a particular bit of legislation. Instead of walking into the public forum yourself you are putting your name to a petition that is to be placed before the public forum. The documents are handed over to the state, the names are to be verified, and the petition is a matter of public record. Anonymity would seem to be anathema to the whole idea.

I would support withholding private information which is only used for verification by the state but the names at least should stand. If they wish to remain anonymous they can write private letters to their elected officials.

 

[Ygggdrasil]

It's unconscionable that a group can obtain your signature, find your address (and maybe even your phone number) through a google search, and then print up a map so the person (or a carload of persons) desiring to engage you "in a debate on the merits of the underlying law" can drive right up to your house, ring your doorbell at 2 AM, and engage you in a debate over why you signed such a stupid petition (In other words, Washington's Public Release Act needs serious attention regardless of the USSC decision). As noble and brave as Scalia's comments sound, I just find them to be totally out of touch with the world we live in today with the technological tools available to be readily used for harrassment of political opponents.

This is why we have harassment laws. Don't throw the baby out with the bathwater.

 

[BobG]

Is there some particular service that's provided by releasing the names?

Votes of legislators should never be secret, because they're hired to represent others. So Scalia's view that a petition signer is acting as a legislator just doesn't hold water. The person signing a petition is representing only himself.

(During oral arguments, the side saying the names should be released claimed it provided important demographic information on supporters of the bill, such as religion, political affiliation, etc, - all info that would not be on a petition, but I guess it's information that a technologically savvy person might be able to obtain if they had your name and address.)

 

[drankin]

Personally, I'm all for voting and petitioning to be a completely public act. It's the release of phone numbers and addresses that doesn't settle well with me.

 

[aquitaine]

Yet another rape of our democracy...

 

[TheStatutoryApe]

Is there some particular service that's provided by releasing the names?

The service of the document in fact being a petition. So the state receives a document. It says that it is a petition. Can we see the document? Well maybe after we alter it. Who is it that is petitioning? Sorry, can't tell you that.

 

[turbo]

The service of the document in fact being a petition. So the state receives a document. It says that it is a petition. Can we see the document? Well maybe after we alter it. Who is it that is petitioning? Sorry, can't tell you that.

We have had a number of well-documented cases of fake petitions (altered, fake petition signers, dead people, etc) since the trend toward "citizens' referendums" took off in Maine ~5 years or so ago. If you have enough money to organize a petition drive (not hard in a thinly-populated state like Maine) and then dump money from out-of-state donors into the election process, you can easily hijack our state government and alter our laws. We need transparency in both areas - BADLY!

In a related wrinkle in the same issue, the Catholic Archdiocese of Portland joined the National Organization for Marriage to get out the petition-drive AND dumped a pile of money into the election ads and we are not sure where all that money came from. The largest holder of tax-exempt properties in most areas of this state is the Catholic church. I believe strongly in the separation of church and state, but on this issue, the church way overstepped some lines IMO. A well-crafted suit challenging the church's anti-gay activism would go a long way to clarifying whether they should retain their tax-free status or register as lobbyists and pay taxes.

 

[BobG]

There's a difference between making the petition available for verification of signatures and publishing a searchable database of all the signers on the internet.

You can do the first by allowing anyone to view the petitions for as long as they need within the building the petitions are kept in, but not allowing any reproduction (either by copier or camera) or scanning of the documents, nor allowing the petitions to be removed.

The point is that advances in technology make it important to find a balance between public access and protection of those exercising their right to participate in their government.

 

[TheStatutoryApe]

There's a difference between making the petition available for verification of signatures and publishing a searchable database of all the signers on the internet.

You can do the first by allowing anyone to view the petitions for as long as they need within the building the petitions are kept in, but not allowing any reproduction (either by copier or camera) or scanning of the documents, nor allowing the petitions to be removed.

The point is that advances in technology make it important to find a balance between public access and protection of those exercising their right to participate in their government.

I certainly agree that private information should be kept private. The government should not have the ability to publish the phone numbers and addresses of individuals for any reason. Even the sex offender list seems to go too far in my opinion.

 

[BobG]

I certainly agree that private information should be kept private. The government should not have the ability to publish the phone numbers and addresses of individuals for any reason. Even the sex offender list seems to go too far in my opinion.

The address has to be on the petition so you can verify the person signing even resides in the affected area (more applicable to petitions for city, county issues than state issues) and so verifiers can determine whether you're actually registered to vote (especially if you have a common name). It's just that that info shouldn't be published on the internet.

There should be at least one difficult step between viewing the petitions and publishing them on the internet, plus penalties for posting them on the internet if a person somehow overcomes the difficult step. Not foolproof, but it at least provides the likelihood that a person can take part in their government without being harassed at their home.

The two organizations attempting to obtain and publish the signers of the petition in this case make their intent very public ahead of time. It's important to them for the public to know they'll repeat those actions for any petition they disagree with. They don't even to have to harass that many signers for their desired aim - intimidation - to be successful.