JURIST Guest Columnist Steve Simpson, a senior attorney at the Institute for Justice, says that recent decisions releasing the names of those who signed a petition to place domestic partnership laws on the ballot in Washington state lack a proper examination of the facts of the case and fail protect petitioners’ right to privacy…

The US Court of Appeals for the Ninth Circuit recently issued a decision in Doe v. Reed that probably signals the end of the plaintiffs’ efforts to protect the identities of those who signed petitions supporting Referendum 71, an anti-domestic partnership measure in Washington state. The decision is a disappointing end to a case that is more noteworthy for the controversy surrounding the underlying issue, same-sex marriage, than for the rule of law regarding petitioners’ privacy established in any of the decisions in the case. Perhaps more than anything, the various decisions in the case illustrate a triumph of legal formalism over engaged, fact-based judging.

When the case was decided by the Supreme Court, the issue in Doe was whether the First Amendment prevented Washington state from publicly disclosing the identities of those who signed petitions to place Referendum 71 on the ballot. On the heels of the battle over Proposition 8 in California, the plaintiff in Doe was concerned that if the signatures were released, those who supported placing the referendum on the ballot would suffer harassment and intimidation. The Court addressed the issue narrowly, construing the challenge as a facial attack on the state’s authority to require the disclosure of petition signatures at all. Applying precedents that established the state’s wide latitude to prevent fraud in elections, the Supreme Court concluded that disclosing the petitions was a legitimate means of verifying signatures. Disclosure in this context, according to the Court, would allow members of the public to essentially verify the state’s verification, and thus help identify any invalid signatures.

There may have been some sense to the Court’s position if we lived at a time when election officials laboriously pored over long lists of petition signatures by hand. However, as Justice Clarence Thomas pointed out in dissent, in the modern era, this sort of thing is typically done by computer. Indeed, by the time the case reached the high court, the state had performed its normal verification process with little difficulty. The groups that sought the petition signatures did not seem interested in verifying signatures after the fact. In fact, two of them intended to post signers’ identities on the Internet so others could confront them about their views on same-sex marriage. Justice Thomas thus rejected the majority’s rationale for disclosure, and would have struck down the law allowing public disclosure as a violation of the right to free speech and association.

Despite all this, the Court held that the plaintiffs could still assert an as-applied challenge to disclosure on remand. When the case returned to the district court, the question was whether the plaintiffs could show that the threat of harassment or reprisals to them was sufficient to outweigh the government’s interest in disclosure. The district court concluded that disclosure was constitutional, despite the fact that Referendum 71 had gone down to defeat months earlier.

The state made the petitions public, and the plaintiffs appealed to the Ninth Circuit seeking an injunction protecting the petitions from further disclosure. The Ninth Circuit denied the injunction on the grounds that it was likely moot because the signatures had already been disclosed. Judge Smith dissented from the panel’s decision, arguing that the issue was likely not moot because there was no evidence that anyone had reviewed the petitions and identified individual names or could do so. Judge Smith also pointed out that there was no hurry to disclose the petitions or harm to the state from preventing disclosure, so the court could easily have granted the injunction while it decided the appeal. Ironically, argued Judge Smith, if the issue was not moot, the court’s own decision denying the injunction would make it so by virtually ensuring that the identities of petition signers would be distributed far and wide.

In summary, the Supreme Court upheld public disclosure of petition signatures so the state could verify signatures when it already had an adequate means for doing so without public disclosure, and no one seemed to want the signatures for that purpose. The district court then denied an as-applied challenge to disclosure after the point at which verification of signatures could do any good, because the election was over. The Ninth Circuit capped off a triumvirate of questionable decisions by concluding an injunction after disclosure was moot and ensuring that if it was not, it surely would be soon because of the court’s own refusal to reverse that disclosure.

Regardless of one’s views on same-sex marriage, the issue of publicly disclosing petition signatures in ballot issue elections deserves better treatment than it received in this case. It is perfectly appropriate for individuals involved in a political battle to confront and criticize their opponents, but it is equally appropriate for their opponents to guard their privacy. Indeed, it is inconsistent to protect the right to vote anonymously, on the one hand, and yet to compel disclosure of one’s views on the same issue by allowing the signatures of those who sign petitions to be made public, on the other. As Justice Thomas pointed out in his dissent, states can verify signatures without publicly disclosing them, so disclosure served no valid state interest in this case and could only lead to chilling speech and political participation.

The Constitution was intended to allow the government to function on a practical level, for instance by establishing sensible rules for elections, without trampling individual rights. To properly interpret and apply its provisions, courts must look at both sides of that equation seriously.

Steve Simpson litigates primarily free speech cases for the Institute for Justice (IJ) nationwide, including successful cases before the Supreme Court. He is the author of multiple publications dealing with the First Amendment and has been published in numerous national periodicals. Before working for IJ, Simpson was a litigation attorney for an international firm.

Suggested citation: Steve Simpson, Petitioner Privacy Rights Lost Amid Marriage Equality Fight, JURIST – Hotline, Dec. 14, 2011, http://jurist.org/hotline/2011/12/steve-simpson-petitioner-privacy.php.