Doe v. Reed

Many states allow citizens to challenge a law passed by the legislature. If enough valid signatures are collected, the issue is placed on the ballot at the next election. This is called a referendum, meaning that the law has been referred to the voters. If a majority of voters endorse the referendum, the state law is repealed.

In Washington in 2009, the governor signed into law a bill expanding the rights of "state-registered domestic partners, including same-sex domestic partners." An organization called Protect Marriage Washington submitted 137,000 signatures for a referendum on the law. R-71 was certified for this year's ballot. Opponents of the referendum "invoked the Washington Public Records Act (PRA) to obtain copies of the petition, which contained the signers' names and addresses." Protect Marriage Washington sued to block the release of the signer's names and addresses on the grounds that they would be subject to harassment and reprisals.

The issue came before the U.S. Supreme Court in Doe v. Reed. The question, as the Court read the case, is whether the public disclosure of referendum petitions, with names and signatures, violates the First Amendment guarantee of Free Speech. By 8 to 1, the Supreme Court held that it does not.

The Court read this as a classic example of a balance problem: the public need for disclosure (who is behind the opposition to the state law?) vs. the need to protect individuals who take a stand on such matters. The Court decided that in general, public disclosure is more important. But it did insist that, in some cases, protection for the signers might be in order. It instructed the lower court to consider whether this was such a case. That invites the courts to be involved in every such controversy.

There is obviously a problem with the disclosure of the signer's names and addresses. Why did opponents of the referendum want such information, if not to embarrass and harass the people who signed the petition? Such harassment could be very serious. A signer might be fired or denied promotion if he signed a petition that his boss, or union, or Church, didn't like. That apparently happened in California to someone who favored Prop. 8. This can clearly have a chilling effect on the willingness of citizens to participate in the political process.

I can see no reason that an individual citizen's name and address should be released to the public in such a case. Disclosure of financial contributions by individuals and corporate bodies is altogether another matter. The proper way to deal with this is by sensible state legislation. Washington and other states should act to encourage political participation by protecting the anonymity of individual signers for exactly the same reason as the law provides for a secret ballot.

But to say that it is good policy to keep the names of petition signers private is not to say that they have a constitutional right to such privacy. Antonin Scalia alone (cue up the orchestra) recognized that this was not a free speech question. I haven't fully digested his concurring opinion yet, but I can offer my own.

The Constitution of 1787 did not provide for voting rights. Who got to vote was entirely up to the various states, and many included such requirements as a holding of property in the state. After the Civil War, voting rights were inserted into the Constitution by amendment, but all of these amendments concern who has the right to vote. There are no additional constitutional protections for persons who do get to vote.

Free speech, like free exercise of religion, is a private right to be protected regardless of whether the exercise of such rights involves political participation. Voting, and signing petitions for a referendum or initiative, are not speech. Scalia points out that signing a petition is analogous to an elected representative casting a vote on the floor of a state legislature or Congress. He or she has no constitutional right to anonymity!

I think the initiative and referendum process in state governments is a bad idea to begin with. It has all but destroyed the state of California. If you are going to have it, maybe you should protect voters against intimidation when they participate. But just because I think such protections are in order, doesn't mean they are constitutionally required. I think the Court reached the right decision in Doe v. Reed. Like my hero Justice Scalia, I think it did so for the wrong reason.

Comments

[Chris]

Intimidation? From the evil queers? You may need to check your premise. People who oppose domestic partnerships are bad people, but that doesn't mean they will get harassed. That's in your mind. On the other hand, gay people are actually harassed every day.

[Donald Pay]

A little South Dakota history on this might help. When the Dakota Nuclear Waste Compact was referred to voters in South Dakota (1985) , Chem-Nuclear hired a private detective to intimidate petition signers and circulators. The intent was to intimidate enough people to sign affidavits that they wanted their names struck from the petition. They used pretty sleazy threats, including threats of legal action against people who they said may have forgotten to put in a middle initial when their voter registration included that initial. Strike enough fear into enough signers/circulators, and they could go to court to stop the election that they knew they were going to lose.

The next year we proposed a law to prevent intimidation of petition signers and circulators, similar to what is already state law for voters. Of course the Legislature turned that down. They had no problem with intimidation of people who referred their law.

To me it makes sense to protect the I & R process by outlawing intimidation and harassment of petition signers and circulators, than to make another loophole for government secrecy.

[John K.]

I think perhaps a little embarrassment for signers of the R-71 petitions is just what the doctor ordered (true harrassment is another story). I, too, believe the initiative and Referrendum are terrible ideas. Representative government was instituted to prevent the raw passions of the people from making bad law. If we are going to have direct democracy, which I find, quite frankly, un-American, the least we could do is temper it with the threat of embarrassment if it is abused. Boycotts and social repercussion are also more than fair game in my opinion. As a society, we all have to interact and get along. If an individual wants to abuse their legislative power to take rights away from me--not playing nice at all, in my opinion-- I deserve the right to know it's going on and the ability to use that knowledge to use all legal means to counteract that and to make decisions about how I want to interact with that person. Again, not speaking about true harrassment or violence, but making the completely legal decision not to patronize someone's business because I don't want to financially help someone who has harmed me financially and otherwise is completely fair game. As Justice Scalia said at oral arguments, "Democracy is not for babies." actions have consequences, and one can't expect to get away scot free when they use their vote to harm others.

[BillW]

The wacked -out left wing minority sees evil everywhere as the only explanation why the overwhelming majority thinks they are nuts - hence we have Chris labeling the majority of Americans who share fundamental Judeo-Christian values and have voted against gay marriages 100% of the time the issue has been on any ballot as "bad people". The only explanation for anyone holding a different view from your's is that they must have a character flaw, right Chris?

Let me guess, buddy: The 59% of Americans who disapprove of Obama are racists, right? And anyone who thinks the wars in the middle east are justified is a pawn of the greedy, oil barons running the industrial-military complex, right? And people who oppose abortion have no respect for women, right? All of your poltical opponents are either intellectually or morally less capable than you, right?

To the point of the post - of course a signature on a ballot referendum should be confidential. It is an extension of the voting booth and no one has a right to know how anyone else votes on any issue.

[Donald Pay]

I got the history a bit wrong above and want to correct it. Chem-Nuclear's harassment campaign against petition signers and circulators came during the nuclear waste vote initiative in 1984, not during the Dakota Compact vote in 1985. In 1985 they launched a lawsuit aimed at preventing a vote on the compact. Both attempts failed.

The initiative and referenda has served a good purpose in South Dakota, where the process has been used as a corrective to Legislative error. Generally, the process has not been abused in South Dakota. The Legislature always complains that there are too many ballot questions, but when you analyze it, the Legislature puts as many or more ballot questions on the ballot as the people do.

[KB]

Chris: I don't doubt that gay people are subject to harassment. That doesn't excuse harassing others. The left has a history of targeting individuals who take politically incorrect positions. It ain't all in my mind.

I thank Donald for supporting me on this one. While I agree with John K. and Antonin Scalia that democracy ain't for sissies, I don't think that someone should fear being fired or have his front yard full of protesters because he signed a petition for a referendum.

Again, with BillW, I think that an individual's signature on a referendum or initiative petition should be kept confidential. That's a policy preference, on a position on constitutional rights.

Donald: I do not agree that the direct democracy serves a good purpose in South Dakota. The corrective to legislative error is to vote the rascals out. Initiatives and referendums dilute legislative responsibility. The fact that the Legislature puts a lot of questions on the ballot proves my point.

[KB]

Chris: I don't doubt that gay people are subject to harassment. That doesn't excuse harassing others. The left has a history of targeting individuals who take politically incorrect positions. It ain't all in my mind.

I thank Donald for supporting me on this one. While I agree with John K. and Antonin Scalia that democracy ain't for sissies, I don't think that someone should fear being fired or have his front yard full of protesters because he signed a petition for a referendum.

Again, with BillW, I think that an individual's signature on a referendum or initiative petition should be kept confidential. That's a policy preference, on a position on constitutional rights.

Donald: I do not agree that the direct democracy serves a good purpose in South Dakota. The corrective to legislative error is to vote the rascals out. Initiatives and referendums dilute legislative responsibility. The fact that the Legislature puts a lot of questions on the ballot proves my point.

[Donald Pay]

KB.

First, I have never seen any data that shows legislators in non-I & R states are any more responsible or responsive to the voting public than those in I & R-states. After 100+ years of the I & R process you should be able to point to a lot of data on this. I am not aware of any. In my own experience, (no I & R) Wisconsin's Legislature is not any more responsible or responsive to the voters than South Dakota's. There are only a handful of competitive districts in Wisconsin (none where I live). The same holds true in South Dakota. So, your solution fails.

Second, your advise devolves into support for one-issue voting. If my Legislator gets one or two issues wrong per session, you advise me to throw out the rascals, rather than collecting signatures to get those issues on the ballot. That's fine, and I have done that in several instances, but a change of one or two Legislators isn't going to make much difference in a body that is hugely dominated by a single party. Again, your solution fails.

Third, I & R is not direct democracy. Only issues that are petitioned onto the ballot are voted on. With respect to the referendum, the measure has already gone through the legislative process. The initiative process used to involve a legislative step that allowed the Legislature to enact the initiated measure or put the measure on the ballot. The Legislature decided that process was too controversial, and opted to change the process. Again, your argument fails

Forth, Legislators put Constitutional Amendments on the ballot because it is required by the Constitution. Again, a fail.

The corrective to harassment is not secrecy. It is to directly confront the harassers.

[KB]

Donald: this is not a question of data but a question of logic. When the voters pass an initiative or referendum, the voters are responsible for it, no? When the legislature passes a law, the legislature is responsible for it, no? Whether the voters use their votes intelligently is not the point.

When voters confront an initiative or referendum, they are confronted with a single question. They don't have to worry about the unintended consequences. Did the voters of South Dakota really mean to put casinos on every street corner when they voted for a video lottery? That's what they got.

Legislators have to consider the whole package of laws they are passing. If we limit class size in public schools, how are we going to pay for the additional teachers? When such a thing is on the ballot, voters just have to ask whether smaller class sizes are a good thing.

South Dakota has not yet been wrecked by this process, but California has been wrecked by it! In every state with direct democracy (sorry, but when voters make policy decisions as opposed to choosing representatives, that's direct democracy) legislators can always pass the buck. We'd like to balance the budget, but these initiatives won't let us.

In a state without such progressive institutions, we know who is responsible: the state legislature. I think that is the better system.

[Donald Pay]

KB

Please, bone up on your Legislative history. The Legislature, not the people, approved video lottery in 1989. So, the Legislature, not the people, gave approval to the video lottery. So I ask you, did the Legislature realize that they were voting for a casino on every corner? No, they didn't. I take you you feel this was a bad law. You and others had a corrective to this--the referendum. You did not use it. Don't blame anyone but yourself.

That 1989 law, by the way, was found unconstitutional. The court found that the Initiated Constitutional Amendment in 1986 had not authorized the Legislature to create the video lottery. The Legislature then passed a new amendment to the Constitution, which went to a vote. The people voted for that amendment 53-47. Both the Legislature and the people have rejected doing away with video lottery repeatedly since then.

Just so you know my position on this. I opposed every effort to liberalize the gaming in South Dakota and supported every vote to do away with video lottery. But the people and the Legislature got what they wanted. Now they have to live with it, unless they get fed up enough and want to petition change in laws. The Legislature is hooked, so don't looked their for help.

[KB]

Donald: you were right and I was wrong. It happened just as I was arriving in this fair state, and my memory failed me. Thanks for the correction.