Litigation

Supreme Court Takes Election-Privacy Case

By Peter Hardin

Do people who sign petitions to put an initiative on a statewide ballot have a right to keep their identities secret under the First Amendment?

The Supreme Court has decided to tackle that question in a case it will review from Washington state. A decision could have important implications for existing disclosure laws, and like a Supreme Court decision in a widely watched case on trial broadcasting last week, it will be made in the context of a ballot initiative against gay rights.

In Washington state, religious conservatives and other backers of traditional marriage collected about 138,000 signatures for a ballot initiative last year called Referendum 71, according to an article in the Seattle Times. It asked voters to keep or toss out an expanded domestic-partnership law with “everything but marriage” benefits for same-sex couples. Foes wanted to overturn the law, but voters approved it.

Project Marriage Washington, a group supporting traditional marriage, sued to block release of names of the ballot-initiative signers. It said Washington’s law requiring disclosure of identities of people who sign initiative petitions violates First Amendment rights of the signers and would probably subject them to “threats and harassment.” A lower federal district court ruled in favor of Project Marriage Washington, but the Ninth U.S. Circuit Court of Appeals disagreed in October.

James Bopp Jr., an Indiana-based lawyer who has argued First Amendment cases nationwide, represents Project Marriage Washington. “We are pleased that the Supreme Court has agreed to hear this case that seeks to protect the rights of citizens who support a traditional definition of marriage to speak freely and without fear,” Bopp said in a statement, according to the Seattle Post-Intelligencer. “The First Amendment protects citizens from being required to disclose their identity when they are engaged in political speech.”

First Amendment claims have been used to attack many forms of election regulation favored by reform groups, including those seeking to reduce the role of special-interest money in state judicial elections. It is possible, even likely, that a victory in this case would enable Bopp to undertake broader attacks on other election laws, including public financing and financial disclosure laws.

Washington Secretary of State Sam Reed said, “We welcome an opportunity to go to the highest court in the land to defend Washington citizens’ strong desire for transparency, openness and accountability in government, and the public’s belief that our state and local public documents must be available for public inspection.”

Two groups had said they wanted to post on the Internet names of the petition signers in Washington. In October, the Supreme Court intervened and stayed the Ninth Circuit’s ruling, effectively blocking disclosure of the names, the New York Times reported.

Also last week the high court blocked plans for broadcasting proceedings in the trial of a lawsuit over the constitutionality of California’s ban on gay marriage, and the court appeared swayed in part by foes of gay marriage who argued that they would be subject to harassment and threats if their testimony were broadcast. (See related posts in Gavel Grab.)

In taking up the issue of petition-signer privacy, the high court “for the second time this week…is grappling with the Internet-age clash between public disclosure and privacy in the context of anti-gay rights ballot initiatives,” wrote The Blog of Legal Times.

There are referendum or initiative processes in 27 states, according to the Seattle Times.

Full post as published by The Gavel on January 19, 2010 (boomark / email).