Doe v. Reed

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Argued April 28, 2010. Decided June 24, 2010.

Docket: 09-559

Issues: (1) Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers; and (2) whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest.

Contents

[edit] Briefs and Documents

[edit] Decision

AFFIRMED in an 8-1 decision with an opinion written by Chief Justice Roberts. Justices Breyer and Alito both filed concurring opinions, and Justice Sotomayor filed a concurring opinion which was joined by Justices Stevens and Ginsburg. Justice Stevens filed an opinion concurring in part and in the judgment, joined by Justice Breyer. Justice Scalia filed an opinion concurring in the judgment. Justice Thomas filed a dissent.

[edit] Oral Argument

Transcript (April 28, 2010)

[edit] Merits Briefs

[edit] Amicus Briefs

[edit] Certiorari-Stage Documents

[edit] Opinion Recap

Tom Goldstein originally wrote the following for SCOTUSblog:

By a broad eight-to-one majority in an opinion by the Chief Justice, the Supreme Court today held in Doe v. Reed that signatories of referendum petitions generally do not have a constitutional right – i.e., a right that would trump state open government laws – to keep their identities private. But the Court held – again, by the same broad majority – that courts should consider in any given case whether a particular referendum presents sufficiently unique circumstances that anonymity is required. It therefore permitted the claim to anonymity in this case, which involves a referendum on gay rights, to proceed in the lower courts. But their chances of prevailing appear very slim, as five members of the Court either expressed significant doubts about their claim or expressly rejected it.

Washington law allows citizens to change state law by referendum. Four percent of the electorate must sign a petition to qualify the referendum for the ballot. In 2009, a new state law expanded the rights of same-sex domestic partners. Opponents collected roughly 137,000 signatures supporting a referendum to repeal the law, qualifying the ballot.

Another provision of Washington law treats referendum petitions as public records subject to disclosure. Proponents of this referendum filed suit in federal court to block disclosure, however. They made two arguments. First, there is always a constitutional right to anonymity for signatories. Second, at the very least there is such a right in this particular case.

The district court ruled for the plaintiff on the first, broadest argument. It did not reach the narrower claim. The Ninth Circuit reversed. Today, the Supreme Court agreed with the Ninth Circuit (pause for dramatic effect), but remanded for the lower courts to consider the plaintiffs’ narrower argument regarding the circumstances of this particular gay-rights referendum. This outcome seemed likely to me from the oral argument, which I discussed in this post: Not so fast in Doe v. Reed.

Preliminarily, the Court held that the disclosure law is subject to First Amendment scrutiny. Signing a petition, the Court reasoned, is an expressive act – expression of a political view – that implicates the First Amendment. That said, the level of scrutiny must account for states’ wide latitude in implementing their voting systems, as well as the fact that disclosure does not itself prevent speech. The Court held that disclosure of referendum petitions generally survives constitutional scrutiny because it helps to combat fraud and eliminate mistakes (because the public is able to review the signatures) and because it promotes governmental transparency and accountability.

Citing Buckley v. Valeo – which held that campaign finance disclosure requirements are generally constitutional, but left open the prospect of a suit challenging a particularly onerous requirement – the Court nonetheless left open the possibility that the plaintiffs could prevail on remand in their challenge to disclosure with respect to this particular referendum. The Court thus held that the plaintiffs’ claim that disclosure here would have the purpose and effect of facilitating harassment of individual signatories should be addressed in the context of that narrower claim.

There were several separate opinions. Justice Alito wrote a separate concurrence that is quite sympathetic to the plaintiffs’ as-applied challenge on remand. Justice Sotomayor wrote a concurring opinion, joined by Justices Stevens and Ginsburg, that is very doubtful about that challenge. Justice Stevens also wrote his own concurring opinion, joined by Justice Breyer, to make the same point, albeit perhaps not as strongly, while Justice Breyer wrote a separate concurring opinion indicating that he doesn’t think that Justice Stevens’ opinion is inconsistent with the Chief Justice’s opinion. Justice Scalia wrote a concurring opinion which takes the position that such a First Amendment claim could never prevail. Justice Thomas was the only dissenter; he would have held that the plaintiffs prevailed on their broad facial challenge to the disclosure provision.

The plaintiffs, having lost their broad facial claim, thus also face significant difficulty in prevailing in their remaining challenge to the disclosure of their identities with respect to this specific referendum. Justices Thomas and Alito are obviously sympathetic to that claim. But five Justices – a majority of the Court – take the opposite view; Justice Scalia rejects it outright and the four more liberal members of the Court express significant doubts about the claim’s viability.

As I mentioned in my earlier post, the decision is perhaps most significant for what it means for disclosure provisions under consideration in the pending campaign finance legislation that would respond to the Court’s Citizens United decision. There seems a solid group of five votes to uphold virtually any disclosure regime. But today’s ruling does not suggest that any member of the Citizens United majority would retreat from that decision to uphold provisions limiting corporate expenditures in elections.

[edit] Oral Argument Recaps

Tom Goldstein originally wrote the following for SCOTUSblog:

I happened to be in the courtroom for the argument in Doe v. Reed, which was Justice Stevens’ last argued case. Early reporting and commentary on the decision – with which I agree entirely – has been that the Court will affirm by a wide margin the Ninth Circuit’s refusal to grant the particular injunction now before the Court.

But it does not follow, as some have thought, that the courts will in fact allow the lists of petition signatories to be released. In fact, I think there is a significant chance they will not.

The lopsided tone of the argument in favor of the State of Washington today depended very much on two factors: Justice Scalia’s strong views that disclosure does not implicate any constitutional interest, and the case’s procedural posture. The latter point is critical. As the Justices understood the case, it came to them presenting only a categorical, “facial” question: whether the signatories to an initiative can ever be disclosed consistent with the First Amendment. That issue – presented by Count I of the plaintiffs’ complaint – was decided below.

The case thus did not present the significantly narrower question whether the signatories to this referendum may be disclosed. That issue – presented by Count II of the plaintiffs’ complaint – was not resolved by the lower courts.

The argument was heavily oriented towards the State because only one Justice – Justice Alito – seemed to favor the view that the First Amendment would broadly prohibit all such disclosures. The other members of the Court seemed quite clear – and the issue was framed by a very early question by the Chief Justice that this was only a “facial” attack – that there would be many instances in which disclosure would not implicate the harassment-related concerns of this initiative and for which disclosure of the signatories would not be worrisome.

The analogy repeated a few times in the argument was that it is generally true that the government may require the disclosure of campaign contributions, but it has also held open the possibility that a party may justify nondisclosure based on unique circumstances.

Notably, it was two of the more liberal members of the Court who seemed quite interested in preserving the possibility of an as-applied challenge to disclosure related to this particular referendum. Justice Breyer said almost nothing, but asked a pointed question to the State’s Attorney General about whether civil rights advocates in Little Rock, Arkansas could have been forced to disclose their advocacy of a hypothetical referendum to support re-opening a school that had been closed in an effort to maintain segregation. And Justice Ginsburg repeatedly returned to the distinction between the two counts of the complaint.

It’s also important to recognize that the Court both granted certiorari and stayed the judgment here, and Justice Thomas cited the prospect of harassment in his opinion in Citizens United. So it would be surprising for them to engage in a complete about-face.

I therefore expect the Court’s decision to be unanimous or nearly so in agreeing that the issuance of an injunction on Count I of the complaint was inappropriate and that the case should return to the district court for further proceedings. Beyond that, the Court may break into three separate camps: that as-applied challenges should be easy (Justice Alito); that they should be exceptionally hard or prohibited altogether (Justice Scalia); and that a middle ground is appropriate. Or the Court may finesse the issue of the proper standard by leaving it unresolved.

I think there is a significant chance that a majority of the Court will signal that the district court should on remand consider very seriously the request for an injunction as to this referendum. And so there is a realistic chance that the State of Washington’s victory in this case will be short-lived.

In the end, however, I doubt that the opinion which results from today’s argument will be the last word on the disclosure of referendum signatories, and there is a significant chance that the case will be back in the Supreme Court in a year or two.

The following was originally written by Lyle Denniston for SCOTUSblog:

Analysis

Justice Antonin Scalia, using history, sarcasm and political taunts, laid down a barrage of objections on April 28 to a plea that the Supreme Court create a new constitutional right of anonymity for individuals who sign petitions to get policy measures onto election ballots. When he was finished, the strong impression was that it might be exceedingly hard to gather a five-vote majority to establish such a right, even though the plea got the fervent support of Justice Samuel A. Alito, Jr., and some implied help from Chief Justice John G. Roberts, Jr. The oral argument was in John Doe # 1, et al., v. Reed, et al. (09-559).

Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the “touchy, feely” sensitivity of some political activists, the Justice said “you can’t run a democracy” with political activity behind a First Amendment shroud. “You are asking us to enter into a whole new field,” Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition. Politics, the Justice went on, “takes a certain amount of civic courage. The First Amendment does not protect you from civic discourse — or even from nasty phone calls.”

The petition-signers represented by Bopp have argued that disclosure of their names and other identifying information they put on petitions will subject them to harassment, and even to violence. The lawyer told the Justices, for example, that one of the chief sponsors of the anti-gay marriage referendum in Washington had his family sleep in the living room to protect them from retaliation. Bopp’s plea clearly resonated with Justice Alito, but his was the only voice on the bench explicitly in support of the claim to anonymity.

What the overall argument made clear is that the case was, in fact, shaping up as a test of whether the Court was prepared to expand the zone of privacy for those who choose to get involved in the nation’s political fray. The state of Washington has worked to make that the central issue before the Court, arguing that the act of signing a referendum petition is, at its core, a legislative act and that the state has an important interest in having transparency for the legislative process that occurs in putting ballot measures before the voting public. State Attorney General Robert M. McKenna told the Court Wednesday that a petition-signer is not just asking the government to do something for him, but is, in effect, “telling the government what to do,” and in the process actually bringing about the suspension of an enacted law until voters can have their say on it.

But Justice Scalia was, if anything, a more aggressive advocate for that view of the case. “A petition-signer,” he said, “is taking part in the legislative process.” He suggested that there was no court case holding that the First Amendment shields “activity that consists of the process of legislation.” In fact, Scalia said, “for the first century of our existence” even casting a ballot was done in public, and ballots were of different colors so everyone could know how an individual had voted in a given contest.

McKenna also sought to reinforce that point, saying that the Court had never ruled on whether there even was a right to confidentiality when one casts a vote, and, if it had, New England town meetings would be unconstitutional. The state’s lawyer, though, did concede that, today, voting itself is a confidential act, and the state has no interest in forcing into public how citizens do vote. Doing that, he said, would have a “much greater chilling effect” on voting than is the case with disclosure of petition-signers’ identity.

All members of the Court except Justice Clarence Thomas took part in the questioning. Justice Thomas had dissented in January when the Court, in another election case (Citizens United v. Federal Election Commission), ruled that Congress has significant authority to impose disclosure requirements on those taking part in federal campaigns. Thomas used strong language in his partial dissent to describe reports of harassment and intimidation of individuals who had promoted an anti-gay marriage petition in California (Proposition 8). Thus, one might expect that, as the Court discusses in private how to rule on the new petition-signers case, Thomas could be a strong advocate for protection of signers’ privacy.

Although Justices Thomas and Alito often share the conservative views of Justice Scalia, they may well part with him on the scope of anonymity in politics.

[edit] Pre-Argument Articles

[edit] Argument Preview

The Supreme Court has sometimes found it necessary to provide anonymity for political activists. The scope of that protection will be tested anew as the Court examines a plea by signers of a petition supporting a ballot measure that they, too, may need to keep their identities secret in order to avoid retaliation, perhaps even a violent response from their opposition. The new case arises in the volatile contact of same-sex marriage.

Background

"Transparency," one might say, is a new buzz word in American politics and government. But a buzz word that goes all the way back to the ratification drive for the Constitution -- the authors of the Federalist Papers, and their adversaries -- is "anonymity." In an age when information travels at warp speed, via the Internet, it is more and more difficult to keep private facts private. But, in that same age, political accountability is often easier to maintain. In a new case that, symbolically, a "John Doe I" and a "John Doe II" have put before the Court, the Justices will find themselves navigating between those Digital Age realities. In the process, they may have to decide what part of the political process, when citizens seek to take government into their own hands, should be shielded from mass media exposure.

On the one hand, individuals who sign petitions to get a policy measure on an election ballot are legislators, in a sense. Like actual members of legislatures who drop a new bill into the hopper, they lay before the legislature their idea for a good new policy -- except, in their case, the "legislature" is actually all of the voters who will cast ballots in an initiative or referendum. But, in another sense, they are like voters themselves, signing a petition as if they were casting a vote for a policy measure, and thus expressing a political belief. Real legislators don't get anonymity for proposing bills, but political activists promoting a cause at the polls have some right of privacy, as the Court has made clear in such decisions as McIntyre v. Ohio Elections Commission in 1995 and Buckley v. American Constitutional Law Foundation in 1999.

About half of the states -- 24 in all -- now have a process for citizen-driven legislation, through an initiative process or a referendum process. At any given time, somewhere in the Nation, a ballot measure organization is circulating petitions for signatures, promoting a cause, or opposing one. It thus is obvious that the constitutional rules that govern that process have widespread impact. Whether those rules should be altered, or reinforced, when the identity of petition signers can be uploaded to the Internet in a matter of seconds, and then distributed as rapidly, is what the Court now faces in a case originating in Washington State.

The Court signaled its interest in this case soon after the current Term opened last October, when the Court temporarily blocked state officials in Washington from publicly disclosing the names and addresses of individuals who had signed petitions promoting a ballot measure -- Referendum 71.

Referendum 71 was about the rights of couples involved in so-called "domestic partnerships" -- a status often recognized for same-sex couples who are not allowed to get married. In 2007, the Washington legislature had created domestic partnerships, to be formally registered with the state. That status was open to a same-sex couple, or to a couple one of whom was at least 62 years old. Two years later, the legislature passed a new law -- Bill 5688 -- that became known popularly as the "everything but marriage" law. It extended to domestic partners all of the legal rights that married couples have (without authorizing actual marriage for same-sex couples). It became law with the governor's signature in May 2009.

A group that opposes gay marriage, and equivalent rights for same-sex couples, Project Marriage Washington, decided to challenge the new law by testing it in a citizen referendum, Referendum 71. Focusing on the parking lots of heavily trafficked stores, like WalMart and Target, the group gathered more than enough signatures to put the measure on the ballot.

Under state law, signers of petitions for ballot measures must include their name, home address, city and county of residence, and their signature. As an option, they can include their e-mail address. When the signatures are counted by state officials, to decide if there are enough, observers may be present, representing both those who approve and those who oppose the measure at issue. For many years, state officials took the position that the petitions were not to be disclosed publicly. However, the current Secretary of State, Sam Reed, considers them to be public records, and thus open for public inspection under state public records law.

Two groups favoring such disclosure are KnowThyNeighbor and WhoSigned. They sought copies of the Referendum 71 signed petitions, with the specific aim of putting them online, to identify the supporters of the measure. They expected, the groups' leaders said, that the disclosure would lead to a "personal and uncomfortable conversation" with those who favored Referendum 71 and thus wanted the new domestic partner law scuttled. Project Marriage Washington, joined by anonymous supporters of the measure, sued, and a federal judge blocked the release of the petitions. The Ninth Circuit Court, however, applying what is called "middle level scrutiny," found that disclosure would not violate any First Amendment rights of speech, association or belief of the backers of Referendum 71. The signatures, the Circuit Court noted, had been gathered in public places, so others could see who supporters were. And, it added, the state made no promise of confidentiality of their identity. Disclosure, it concluded, would help prevent fraud in the referendum process, and contribute to public awareness of those who, by signing a petition, "have taken action that has direct legislative effect."

The Supreme Court. over the sole dissenting vote of Justice John Paul Stevens, put release of the petitions on hold, and, two weeks later, on Nov. 3, Referendum 71 went before Washington's voters. A "yes" vote would keep the domestic partnership law, a "no" vote would wipe out off the books. The "yes" vote prevailed, by a 53.1 to 46.9 percent margin.

Because potential disclosure of the signers' private information had only been put on hold temporarily, Project Marriage Washington and two anonymous signers filed the case in the Supreme Court two days after the balloting.

Petition for Certiorari

Project Marriage Washington and the two "John Does" asked the Court to decide two technical legal questions, but they amount to a plea for full constitutional protection for the privacy of personal identifying information, as well as political beliefs, of petition-signers. First, they urged the Court to impose the most rigorous constitutional standard -- "strict scrutiny" -- to any compelled public disclosure of their identities and beliefs. That test is whether such disclosure serves a "compelling" government interest, and whether the disclosure is a "narrowly tailored" way to serve any such interest. Second, they argued that the disclosure ordered in this case cannot satisfy that standard, so a final court order against release of the petitions would be justified. What is at stake, the petition argued, was not simply the privacy of their identifying information, but also the fact of their support for a political position -- in other words, an expression of their political beliefs and of the political alignment they seek to join.

Under Washington law, the petition argued, the names of and other information about petition signers are disclosed to state officials only for the limited purpose of ensuring that there are enough valid signatures to get a referendum measure on the ballot, and to allow verification of the signatures. The filing also contended that state courts have ruled that petitions are not public records.

Privacy of the records -- and thus anonymity for the signers -- is necessary, the petition contended, because there is "a growing amount of evidence" that proponents of ballot measures such as Referendum 71, opposing gay rights, are targets for death threats and other forms of violent retaliation. And, summoning up a new technology argument, the petition said that the ease of uploading information to electronic databases, with wide and nearly instant distribution, raises significantly the prospect for retaliation against ballot measure proponents.

The state of Washington urged the Court to pass up review of the case. It noted that the Ninth Circuit had not explained its decision on release by the time the Supreme Court had blocked that release, but had now done so, and it argued that the final reasoning employed by the Circuit Court showed that it was not in conflict with any other decision of an appeals court, and that there is no confusion among the appeals courts about the question.

On the merits, the state contended that there is no compelled disclosure to the public of the signers' identifying information. The state public records law only applies to the government, and only requires disclosure of government records, the state said. Moreover, the state's opposition said that public disclosure has already occurred, when the signers put their signatures on a petition in a public place, open to observation by others. Once they perform that act, the state contended, they have left only a very limited "associational" interest. And the state argued that release of ballot measure petitions has been occurring for years, across the country, and yet this is the first case in which privacy for the signers has been raised.

Review of the case also was opposed by Washington Families Standing Together, a group that favored the domestic partner law and had intervened in the case at the Ninth Circuit. It argued, as the state did, that there is simply no dispute among federal appeals courts about the issue at stake. And, the group contended, this case is not a proper one to raise the issue, because "the record is notably incomplete" and "procedurally complicated." (Another group in the court below, the Washington Coalition for Open Government, waived its right to respond to the petition.)

Two days before the Court was scheduled to consider the Doe petition at the Jan. 15 Conference, the Court, by a 5-4 vote, sent a signal that a majority was concerned about the threat of retaliation if there were widespread publicity surrounding the supporters of ballot measures against same-sex marriage. The Court ordered a halt for a federal judge's plan permitting televised coverage of the trial in San Francisco of the constitutionality of California's Proposition 8, banning gay marriage n that state. Part of the majority's reasoning for doing so was that Proposition 8 backers, some of whom would be called to the witness stand during the trial, had demonstrated that their identification with that controversial measure had led to "incidents of past harassment." Donors to pro-Proposition 8 groups, the Court's opinion said, had received "death threats and envelopes containing a powdery white substance."

Whether or not that perception had any influence on the Court in the Referendum 71 case, the Court promptly granted review of the case at the first opportunity, on Jan. 15. The Court expedited the case on its docket, to assure a ruling during the current Term. Its October order temporarily blocking release of the petition signers' information is to remain in effect until the Justices reach a final decision.

Merits Briefs

Picking up on the Court’s earlier expression of concern about retaliation against gay-marriage foes and their political activity, and seizing upon the high level of publicity surrounding the dispute over California’s Proposition 8, five of the first six pages of the Referendum 71 group’s merits brief are devoted to threats against Proposition 8 supporters. The brief, indeed, opened with this sentence: “This case arose in the wake of events in California.” The recitation included the profanity used in some of the threats, presumably to add to their authenticity.

When it began discussing the legal merits of the case, the brief used fervent language. At the core of the case, it argued, “lies the First Amendment question of whether, when the sovereign people seek to put a referendum on the ballot, they may be constitutionally compelled to publicly disclose identifying information about themselves, their association, and their belief that a measure should be on the ballot or whether any state interests are satisfied by private disclosure to the government.”

Under Washington law, the brief said, ballot supporters are compelled to speak at three levels – at the time they sign petitions, when they submit petitions to state officials to be canvassed, and when public disclosure is ordered. The first two levels, it said, do not involve any fear of intimidation or any waiver of rights. It is at the third level, public disclosure, where “there is serous concern over both loss of privacy and intimidation.

Recalling the cases of voter intimidation in the Ku Klux Klan era in the 19th Century, the Referendum 71 supporters’ brief argued that violence used to control elections has been one of the two great evils against republican government, along with corruption. The state of Washington, in defending public disclosure of petition signers, the brief said, “argues corruption and downplays intimidation.:”

Washington Secretary of State Sam Reed’s merits brief leaned heavily on the argument that, when citizens sign a referendum petition, “they are exercising the same legislative power as the elected Washington Legislature, having reserved this power in the state constitution. Signing a referendum petition is a legally operative act.” Once such petitions succeed with citizen signers, it noted, state officials have no choice but to conduct an election, and the law that is being referred for citizen approval is suspended in the meantime. A petition signer, it went on, is like a member of the legislature who seconds a motion. “In a legislative body, if there is no second, the motion fails,” it commented, adding: “When Washington’s citizens legislate directly, if there are not enough signatures, the measure will not qualify to the ballot.”

Moreover, the state’s merits brief contended that signing a referendum is not like making a speech, or engaging in ”expressive conduct” of the kind that enjoys broad First Amendment protection. Rather, it said, a signer has no control over the content of the petition; that is dictated by state law and by the sponsor’s choice. Signing a petition is not like circulating handbills about elections, a process that the distributor controls, or about the process of actually circulating the petition, which is a form of core political speech, the state contended. Since the act of signing is not an act of political expression, disclosure of the petition’s signers can be judged by a standard of less rigor than strict scrutiny, Reed argued.

The Reed brief also contended that, even though the Referendum 71 signers were claiming that they were only raising a challenge to disclosure of identities in their own case, they actually were making a much broader challenge to any disclosure at any time during any initiative, recall, or candidate nomination process, as well as any referendum, thus arguing against any state public records application to such information.

Like the state, the intervening group, the Washington Coalition for Open Government, argued in its merits brief that the Referendum 71 signers were seeking “sweeping relief,” in an attempt to use the Constitution to compel the state of Washington to permit them “to operate the state legislative process in secrecy. There is no right, fundamental or otherwise, to secrecy in the legislative process….No part of the United States Constitution provides for direct popular legislation, and the drafters of the First Amendment expressly decided not to include such a right, or the protection of such a right, within the First Amendment.”

The other intervening group, Washington Families Standing Together, made essentially a states’ rights argument in its merits brief. States that permit citizen-driven legislative efforts, that brief asserted, are free to control the process. Every state that has such a process, except one (California), makes petition or referendum petitions subject to public disclosure, it commented. Signing such a petition, it added, is neither a private nor an anonymous act, and is entitled, at most, to only middle-level First Amendment protection.

Among amici, the argument for anonymity drew the greater support, numerically (16 briefs to nine). Much of that support (though not all) comes from such high-visibility conservative or libertarian groups as American Center for Law and Justice, Institute for Justice, and Cato Institute. It also draws the support, as would be expected, from Proposition 8 backers in California. Liberal groups, like the Brennan Center for Justice, entered the case in the middle, supporting neither side but urging the Court to take care not to interfere with public disclosure of money in political activity.

Twenty-three states, arguing for state authority to act against fraud in elections, lead the amici supporting Washington State. Also on that side of the case is a wide array of news organizations, arguing the need for access to public records, including election records, as well as online publishers, and a group of gay rights organizations.

Analysis

The Court, perhaps, has tipped its hand in the case, not only by its order in October, temporarily protecting the Washington signers’ privacy, but also by its 5-4 ruling in January in the Proposition 8 TV trial coverage ruling. But both of those actions tend largely to exhibit sympathy for the argument that opponents of gay marriage do face threats and other forms of harassment or outright violence. That sentiment, perhaps, cannot be translated directly into a conclusion that signing a petition is a form of protected political speech.

The Court has never before analyzed, as it must in this case, just exactly what occurs – in a constitutional sense – when a citizen writes a signature, and enters personal information, on a political petition. The Referendum 71 case presents that issue very directly, with the signers making a vigorous argument that it is a purely expressive form of political speech, while those favoring public disclosure of petitions make an equally vigorous argument that the role of citizen as legislative sponsor is no different from that of an elected lawmaker. To side with the former and against the latter, the Court would have to make a sizeable constitutional leap from past rulings on electoral anonymity. Perhaps some of the Justices voted to grant review of the case precisely anticipating that they might well do just that. The briefing, though, has sharpened the issue, far more than did the content submitted to the Court prior to the October order and that presented before review was granted.

For a Court that has recently shown, especially in the Citizens United v. Federal Election Commission decision in January, that is reads the First Amendment expansively in the context of election campaigns, there may be little hesitancy now in deciding the Referendum 71 case by lengthening that trend, to elevate the constitutional significance of signing a political petition. Much may be revealed on this score at oral argument.

Whether the Court will see this case as a test of the Constitution’s role in mediating the heavy political controversy, being waged across the country, over gay rights, is unclear at this point. That controversy, to be sure, has a bearing on the intimidation issue that is so central to the Referendum 71 signers’ case.

However, just as central to the other side’s argument is a plea for open government, coupled with a plea for state control of their own initiative and referendum processes. Choosing between those two conflicting approaches to the case may be difficult, indeed.

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