Yesterday, James Bopp, on behalf of Protect Marriage Washington, and Attorney General Rob McKenna, on behalf of the State of Washington, Washington Families Standing Together and the Washington Coalition for Open Government, argued before the United States Supreme Court over whether the release of names and addresses of referendum signature gatherers is consistent with the First Amendment.  I read the complete transcript.

Based on the questions asked, the State and other respondents should prevail on the question of whether the First Amendment generally bars disclosure of the identity of initiative and referendum signatories. (They argued yesterday that it does not.) But, as discussed below, that does not necessarily mean that the identities of the signers of the Referendum 71 petitions will be released.

McKenna outperformed Bopp.  McKenna was well-prepared. McKenna generally answered the Court’s questions.  He did, however, give enough ground such that the litigation over R-71 will likely live on.

Bopp argued first, having lost in the Ninth Circuit. Justice Scalia almost immediately jumped in with questions addressing the broad scope of Bopp’s argument. Scalia wanted to know—if Bopp was right— would disclosure of campaign contributions be unconstitutional because of the potential for intimidation?  Bopp had to acknowledge that potentially could be a consequence of his asserted right to privacy (despite a prior Supreme Court holding to the contrary), but that the first amendment analysis might be different for campaign contributions than petition signatories.  Justice Sotomayor followed up wondering why disclosure of any election related information, including voter registration lists, would not be unconstitutional under Bopp’s theory. These questions demonstrated a significant concern that Bopp’s arguments went too far and would result in the unconstitutionality of a plethora of disclosure laws relating to elections.

A number of Justices including Sotomayor and Kennedy asked about the informational interests in disclosure of the identity of people supporting an initiative or referendum.  Bopp tried to dismiss this interest as not pertinent or marginal at best. Justice Ginsburg wanted to know why it was all right for initiative and referendum supporters to have access to the list of signatories for fund-raising purposes, but other members of the public could not have the list?  Bopp asserted that the signing of the petition was an act of private association with the referendum committee. Ginsburg followed up by noting that in his brief Bopp asserted there were several reasons why someone would sign and that two of them (a general belief that the people should get to decide any issue or a desire to get rid of a pesky signature gatherer) and had nothing to do with associating with the referendum’s goal, calling out Bopp for misspeaking in his argument.

Justice Scalia though delivered the best retorts to Bopp’s arguments noting “the fact is that running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate, or to take part in the legislative process.”  Justice Scalia also noted that the disclosure laws were the choice of Washington voters:  “the people [of] Washington evidently think that this is not too much of an imposition upon people's courage, to—to stand up and sign something and be willing to stand behind it.  Justice Scalia concluded:  “You know, you can't run a democracy this way, with everybody being afraid of having his political positions known.”  At this point, Bopp sat down reserving his final two minutes for rebuttal.

Attorney General McKenna started off by clarifying some of the process issues for verification of signatures in Washington and emphasizing the choice of voters in Washington made in adopting the public records act.  McKenna was thrown off a bit when asked whether the State could compel disclosure of how people voted.  McKenna initially suggested that the First Amendment would not, which resulted in Justice Scalia reminding him that for 100 years, open public voting was the norm in the United States and questioned whether all that had been unconstitutional?  McKenna backed off noting that the question of whether the secret ballot is a federal constitutional requirement has not been addressed and that the State has a lesser interest in knowing how someone voted than who signed a referendum petition.

Then Justice Scalia, joined by Justice Alito, started bearing down on how far Washington could impose disclosure requirements.  Telephone numbers?  McKenna initially suggested not, but when pressed on the State’s claimed informational interest in encouraging debate, said the State could, if it choose, compel signers to include their telephone numbers which then could be disclosed.  Religious affiliations?  McKenna said no and stuck with that answer.

Justice Breyer than posited that if in 1957 a group of citizens in Little Rock Arkansas petitioned to re-open Central High School, which had been closed in response to an integration order, and demonstrated a fear that their businesses would be bombed and children harassed, the First Amendment would protect against the disclosure of their names.  How, he asked, is that case different than this case?

Here is where McKenna retreated in a way that left a large door open for future litigation. McKenna responded that each claim has to be evaluated on a case-by-case basis.  Justice Scalia then asked if it was therefore okay to give the petitioner—challenging the release of names—the opportunity to show that the opposition will do violence to those who sign the petition. McKenna appropriately agreed. But then Chief Justice Roberts suggested that the only way such a challenge could actually be effective is if names were protected pending resolution of the challenge. And if so, should not the court prohibit disclosure until Protect Families Washington had an opportunity to pursue such a challenge. McKenna said “yes,” conceding that the State would not oppose keeping the current order blocking release of names in place if Protect Washington Families wanted to seek relief in the District Court based on a substantial fear of actual harassment.  Thus, the door was left open for the litigation to enter phase two.

Yesterday, Josh noted that McKenna described the principal behind Washington’s public disclosure laws as “trust but verify” the government’s actions. While Justice Scalia may have liked that description, respectfully it is inaccurate.

The initiative that adopted the public disclosure laws was based on a fundamental distrust of government.  As stated in the law: “The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”  That is not “trust but verify."

In summary, the argument suggests that the State should prevail and that the Court will not adopt a broad rule prohibiting disclosure of the identity of petition signatories.  So the State should win the war so to speak. But still expect many battles, including in this case, applying traditional First Amendment principles arguing whether the threat of harassment and violence associated with a particular initiative or referendum is sufficient to require court protection against the disclosure of signers’ identities.
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