A 1992 Supreme Court case stemming from a lawsuit in Hawaii made it into the news when it was cited in the recent Supreme Court decision which held that names on petitions to qualify an issue as a ballot measure are subject to public disclosure. Such disclosure, as a general matter, doesn’t unconstitutionally infringe on free speech rights, the court held.
The case comes from Washington State, where a group opposed to a new law that expanded domestic partnership rights collected enough signatures on a petition to put the measure on the ballot, where it urged voters to reject the new law. Supporters of domestic partnerships then sought disclosure of the petitions, and the matter ended up in court.
This Supreme Court decision only addressed the general issue of whether disclosure of the names on petitions like this one would improperly burden the First Amendment rights of signers. Their answer was a firm “No”.
One of the key cases cited along the way was Burdick v. Takushi, which the Supreme Court decided back in 1992. Burdick filed a lawsuit challenging Hawaii’s election law, which doesn’t provide voters to cast their ballots for write-in candidates. The court, however, ruled in favor of the state, taking the position that Hawaii offers several ways for a candidate to get onto the ballot, and that the prohibition on write-in votes is part of the reasonable regulation of the election process.
The Constitutional Law Prof Blog looked at the oral arguments made before the Supreme Court. Interesting stuff.
Arguing for the Does and Protectmarriage.org, James Bopp began : “No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.”
He was quickly interrupted by Justice Scalia who inquired about the analogy to campaign contributions, with Bopp agreeing and citing Buckley v. Valeo and Scalia asking why that doesn’t fall within Bopp’s principle that no person should be exposed to criticism for his political beliefs. Indeed, Scalia expressed much skepticism regarding Bopp’s argument:
the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.You are asking us to enter into a whole new field where we have never gone before.
Scalia later derided the “touchy-feely, oh, so sensitive” sentiments, concluding that “you can’t run a democracy this way, with everybody being afraid of having his political positions known.”
Justice Ginsburg inquired about the list of signatures as available to the organization, noting that the signatures on the petition could be used for marketing purposes, to which Mr. Bopp agreed.
There was also a bit of a rebuke from Justice Kennedy:
JUSTICE KENNEDY: Well, let me — let me ask you, could the opponents of a particular ballot measure organize a boycott for — and picket businesses whose managers had supported that boycott.
MR. BOPP: Yes.
JUSTICE KENNEDY: Had supported that initiative?
MR. BOPP: Yes.
JUSTICE KENNEDY: Well, if that’s — if that’s so, then under Claiborne Hardware, which I — I notice you didn’t cite in your brief, but if — if that’s so, then it seems to me that the State’s — or that — that the signers’ interest in keeping their names private is somewhat diminished.In addition to the fraud rationale for requiring disclosure, Justice Stevens posed a public debate rationale:
JUSTICE STEVENS: Isn’t there another possible public interest? Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified?
Is there public interest in encouraging debate on the underlying issue?
MR. BOPP: Well, it’s possible, but we think this information is marginal.
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I am naive about this but I think if an individual voter signs a petition to get an issue on the ballot then his or her information should be public. Otherwise how would checking go on for legitimate signers if there is a dispute? Obviously a clerk will check legally, but if a dispute occurs and an examination of the signers is appropriate then the info must be available. To anyone. No hiding.