Litigation

Justices Voice Skepticism on Election-Privacy Plea

By Peter Hardin

Supreme Court justices voiced skepticism when foes of gay rights asked to shield the names of people who signed a ballot petition seeking repeal of Washington state’s domestic partnership law.

The case, argued on Wednesday, is seen as a potential blockbuster for the ways a decision  could influence existing disclosure requirements and campaign finance law, and even for what it might reveal about the court’s leanings on gay marriage.

“Running a democracy takes a certain amount of civic courage,” Justice Antonin Scalia remarked during oral arguments, according to an Associated Press article. He needled as “touchy-feely” the arguments to keep secret the signers’ names.

“The people of Washington evidently think that this is not too much of an imposition upon people’s courage ? to stand up and sign something and be willing to stand behind it,” an account in USA Today quoted Justice Scalia as saying.

Justice John Paul Stevens, who is retiring and heard scheduled oral arguments for the last time, asked about another possible public interest, saying, “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’?”

Justice Sonia Sotomayor asked whether the line of argument against disclosing names could reach further, and even keep the public in the dark about important government operations.

Traditional marriage supporters have battled to keep the names secret, saying disclosure  would probably subject the signers to threats and harassment (see Gavel Grab).

“No person should suffer harassment for participating in our political system,” contended lawyer James Bopp Jr., representing a group called Protect Marriage Washington.

Washington state Attorney General Rob McKenna said the state’s Public Disclosure Act mandated the release of the names, according to a McClatchy Newspapers report.  He said  there had not been evidence  of harassment or intimidation.

Bopp played a key role in framing the Citizens United case that won a campaign-finance victory for like-minded activists, when the Supreme Court recently permitted unlimited spending by corporations and labor unions for independent political advertising.

The Doe v. Reed case from Washington state is a warm-up for cases coming from other states over  disclosing the names of campaign donors, according to an article in Mother Jones. The article called Bopp “a leader of the Christian Right with an uncanny ability to spot weaknesses in campaign finance statutes and obliterate them via the First Amendment.”

In advance of the oral arguments, a Washington Post editorial urged against shielding the names:

“The petition process is an inherently public endeavor. Ordinary citizens take on the role of public actors by signing a petition to put a policy question to a vote. This is not the voting booth, and those who voluntarily add their names to a petition have never had an expectation of privacy.”

James Bopp elaborated in a Seattle Times column on his opposite views:

“[P]etition signers are not elected representatives. They are sovereign citizens exercising a right they reserved for themselves in the state constitution. Their signatures represent a statement that the issue is too important to be left to the men and women serving in the state house. And petition signers are no more legislators than the 1.8 million voters who cast ballots at the ensuing election.”

You can learn more about the case from Gavel Grab.

Full post as published by The Gavel on April 28, 2010 (boomark / email).