Supreme Court skeptical on keeping Ref. 71 petition names secret: Democracy takes 'civic courage'
The Supreme Court seemed skeptical of arguments that the names on the petition asking for the repeal of Washington state's domestic partnership rights should be kept secret.
Seattle Times staff reporters
Church-state decisionIn a significant shift away from church-state separation, the Supreme Court gave its approval Wednesday to displaying a Christian cross on government land to honor war dead, saying the Constitution "does not require the eradication of all religious symbols in the public realm."
By a 5-4 vote, the justices reversed lower courts in California that ordered the U.S. Park Service to remove an 8-foot-tall cross that has stood in various forms in the Mojave National Preserve since 1934 as a memorial to World War I soldiers.
The long-running dispute over the Mojave cross was the first church-state case to reach the high court since John Roberts became chief justice five years ago.
Justice Anthony Kennedy's opinion recasts the law in a way that will make it harder to challenge other religious displays, such as the Ten Commandments or depictions of Jesus' birth during the Christmas season.
Los Angeles Times
WASHINGTON — In a hearing punctuated by sharp questions, U.S. Supreme Court justices Wednesday seemed skeptical that people who sign ballot petitions — including one that sought to overturn a gay-rights law in Washington state — should remain anonymous.
"Running a democracy takes a certain amount of civic courage," Justice Antonin Scalia said during oral arguments in a case brought by conservative groups trying to keep Referendum 71 petition signatures secret. "The First Amendment offers no protection against criticism or even nasty phone calls."
Scalia was one of several justices who appeared unpersuaded that signing a ballot petition is political speech deserving the highest degree of protection. Rather, they homed in on the broad implications of granting blanket exemption to all initiative or referendum petitions from public disclosure.
The case, Doe v. Reed, arose out of a 2009 Washington law granting gay and lesbian couples registered as domestic partners the same state rights as married people. Opponents sought to repeal the law through Ref. 71. The measure qualified for last November's ballot, but 53 percent of voters opted to uphold the expanded benefits.
Even before the Ref. 71 petition began circulating, a gay-rights advocate announced he planned to obtain the signers' names — as permitted under the state Public Records Act — and post them online.
Ref. 71 sponsors said such disclosure would scare supporters away from exercising their right to free speech. They filed suit to keep the names secret.
Ultimately, 138,000 people signed the measure in little more than two months, exceeding the 120,577 signatures needed to qualify for the ballot.
The high court is tackling an issue without direct precedent: whether signing a petition is protected speech or a public act, and where the balance lies between individual privacy and public information to foster democracy.
Wednesday's case was the final oral argument for the court's term, and the final one for retiring Justice John Paul Stevens.
Several justices appeared skeptical of the case made by James Bopp Jr., the plaintiff's attorney, that disclosing the names on petitions on any topic significantly intrudes on the First Amendment.
Scalia pounced first, interrupting Bopp as he argued that the Constitution protects against forced disclosure of beliefs and identities.
"What about disclosure of campaign contributions?" Scalia asked.
"Do you think it's unconstitutional?" Scalia added, forcing Bopp to acknowledge dryly that "this court has upheld the disclosure in Buckley v. Valeo in 1976."
That was followed by rapid dissections by Justices Sonia Sotomayor, Ruth Bader Ginsburg, Anthony Kennedy and Chief Justice John Roberts.
Sotomayor and Roberts questioned whether it would infringe on free speech if the public knew exactly who was supporting a new tax plan or a bond issue. If not, Roberts said, Bopp's central argument "fails as well."
Ginsburg elicited an acknowledgment from Bopp that Protect Marriage Washington, the group that put Ref. 71 on the ballot, sometimes uses or sells the list of petition signers' names for fundraising.
Washington Attorney General Rob McKenna argued in favor of releasing the names.
Justice Samuel Alito, who asked only a few questions of Bopp, pressed McKenna to demonstrate the state's interest in releasing the petitioners' names.
Unlike legislators, "somebody who signs a petition is not answerable to anybody," Alito said. "So what is your interest?"
McKenna responded that in addition to rooting out fraudulent signatures, public disclosure might, for instance, inform voters by disclosing that a particular company or organization is pushing for a tax break or other causes.
Eugene Volokh, a University of California, Los Angeles law professor who specializes in First Amendment law, said prognosticating a decision based on the justices' questions is tricky. But, Volokh said, the court seemed to be questioning whether there was any right to anonymity when people are not just giving their position on an issue, but making a legally binding demand for government action via a ballot petition.
Even for political speech, privacy is not absolute. Americans vote in secret, but the Supreme Court has never ruled it's a constitutional right. And the identities of people who attend Republican or Democratic caucuses in Washington and elsewhere are known to state party leaders.
Under Washington's Public Records Act, ballot petitions have been considered public records. But it wasn't until 2007, when the state switched from archiving on microfilm to digital imaging, that obtaining the records became practical and affordable.
Since 2006, the Secretary of State's Office has received requests for and released seven petitions, including Initiative 920 for estate taxes and Initiative 917 for motor-vehicle taxes.
A CD copy of Ref. 71 petitions was released to a gay-rights group, Washington Families Standing Together. But a lower court said the group couldn't post or distribute the names until the Supreme Court ruled on the case.
However, the group, which campaigned to keep the domestic-partnership law, said it has no intention of posting the names and just wanted to make sure the signatures were legitimate.
The Seattle Times is among 22 news organizations and media trade associations that filed a brief in the case supporting public disclosure of the petitions.
Speaking after the hearing, McKenna said he was heartened by the justices' focus on the broad implications of withholding names not just for Ref. 71, but for all citizen petitions all across the country.
"The majority of the justices were skeptical of the plaintiff's arguments," he said.
Bopp, an Indiana lawyer who has gained national prominence by taking on laws that limit campaign contributions, said he counted three justices in his corner. Bopp said he did not know if McKenna had swayed enough justices to win the case.
Bopp has said that if he loses, he'll ask a lower court to grant an exemption from public disclosure just for Ref. 71 based on the potential that such disclosure could lead to harassment.
The courts have generally allowed case-by-case exemptions for information that would otherwise be public. McKenna told the justices he would support withholding the names from disclosure while the other side pursued that option.
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