June 24, 2010

Supreme Court Decides Doe v. Reed

On June 24, 2010, the Supreme Court decided Doe v. Reed, No. 09-559, holding that a statute providing for disclosure of referendum petitions did not, on its face, violate the First Amendment because the state's interest in the integrity of the electoral process, by detecting fraud and mistake and providing transparency, outweighed the "modest" burdens on First Amendment–protected rights imposed by disclosure.

Washington state law provides that citizens may challenge state laws by referendum if approximately four percent of its voters sign a petition, and provide their name and address, to place the referendum on the ballot. Another statute, the Public Records Act, allows private parties to obtain copies of government documents, a category that includes referendum petitions. In 2009, a group known as "Protect Marriage Washington" submitted a petition containing over 137,000 signatories for referendum of a statute that "‘expand[ed] the rights and responsibilities" of state-registered domestic partners, including same-sex domestic partners." The Secretary of State determined that the petition contained an adequate number of valid signatures pursuant to procedures mandated by Washington law. Several organizations sought copies of the petition.

Protect Marriage Washington filed a complaint and motion for a preliminary injunction in federal district court, bringing both facial and as-applied challenges to disclosure of the petition as provided by the Public Records Act. Specifically, it claimed that the Act was "‘unconstitutional as applied to referendum petitions'" and that it was unconstitutional as applied to the particular referendum "because there is a reasonable probability that the signatories . . . will be subjected to threats, harassment, and reprisals." The District Court granted the preliminary injunction based on the challenge to referendum petitions in general. The Ninth Circuit, reviewing only that claim, reversed.

The Supreme Court affirmed. It concluded that the "facial" standard of review applied to the case because the requested relief would affect cases "beyond the particular circumstances of these plaintiffs." The First Amendment is implicated in referendum petitions because the signature is a political view that the electorate should consider the issue and because in most circumstances the signature expresses the view that the law at issue should be overturned. The Public Records Act survived the "exacting scrutiny" applied to disclosure requirements in electoral contexts based on the State's interest in preserving the integrity of the electoral process and the "modest" burdens typically associated with disclosure of petitions. The Court explained that states have an interest in rooting out fraud, including forgery and "bait and switch" fraud in which the underlying issue has been misrepresented, and also has an interest in identifying mistakes in petitions such as duplicative signatures. Furthermore, disclosure advances the state's interest in promoting transparency and accountability in the electoral process. The Court did not reach the question of whether states have an interest in providing information to the electorate about who supports a petition.

The Court noted that the State's argument that disclosure of typical petitions imposes only "modest" burdens remained "unrebutted." Instead, petitioners' arguments that they would be subject to threats, harassment, and reprisals based on information that groups planned to post signatory information and encourage citizens to "seek out" the signatories, involved specific "as applied" challenges that remained open on remand.

Chief Justice Roberts delivered the opinion for the Court, in which Justices Kennedy, Ginsburg, Breyer, and Alito joined. Justices Breyer and Alito filed concurring opinions. Justice Sotomayor filed a concurring opinion in which Justices Stevens and Ginsburg joined. Justice Stevens filed an opinion concurring in part and concurring in the judgment in which Justice Breyer joined. Justice Scalia filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion.

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