DOE #1 v. REED
Plaintiffs sought a preliminary injunction in a Washington federal district court to prevent the state of Washington from making referendum petitions available under the state's Public Records Act ("PRA"). In response to a petition titled "Preserve Marriage, Protect Children," plaintiffs attempted to prevent the release of the names and contact information of individuals who signed the petition. The plaintiffs argued that, as applied to referendum petitions, the PRA violates the First Amendment because it is not narrowly tailored to serve a compelling government interest. The district court granted the injunction.
On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed holding that the PRA does not violate the First Amendment when applied to require public disclosure of petitions calling for a referendum. The court reasoned that even assuming that signing a petition qualifies as expressive conduct, and that application of the PRA's public access provision has an incidental effect on a referendum signer's speech by deterring some would-be signers, the appropriate level of constitutional inquiry is intermediate scrutiny, not strict scrutiny. Under intermediate scrutiny, the interests asserted by the state are sufficiently important to justify the law's incidental limitations of referendum petition signers' First Amendment freedoms.
- Brief Amicus Curiae of the Free Speech Defense And Education Fund, Inc., Free Speech Coalition, Inc., United States Justice Foundation, Citizens United, National Right To Work Legal Defense And Education Foundation, Inc., Institute On the Constitution, Do
- Brief of Respondent
- Brief Amici Curiae of Common Sense for Oregon, the Oregon Anti-crime Alliance, And Oregonians In Action In Support of Petitioners
- Brief of Amicus Curiae Alliance Defense Fund In Support of Petitioners
- Brief of the Institute for Justice as Amicus Curiae In Support of Petitioners
- Brief Amicus Curiae of Protectmarriage.com – Yes On 8, a Project of California Renewal In Support of Petitioners
- Brief for the States of Ohio, Arizona, Colorado, Florida, Idaho, Illinois, Maine, Maryland, Massachusetts, Mississippi, Montana, New Hampshire, New Jersey, New Mexico, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Utah, Vermont,
- Brief of the National Conference of State Legislatures, International City/county Management Association, National Association of Counties, And International Municipal Lawyers Association as Amici Curiae In Support of Respondents
- Brief Amici Curiae of National And Washington State News Publishers, News Broadcasters And News Media Professional Associations In Support of Respondents
- Brief of Amicus Curiae the City of Seattle In Support of Respondents
1) Does the First Amendment protection of political speech, association, and belief require strict scrutiny when a state compels the public release of identifying information about petition signers?
2) Is compelling public disclosure of identifying information about petition signers narrowly tailored to a compelling interest, and did the petitioners meet all the elements required for a preliminary injunction?
Legal provision: First Amendment
No. Yes. The Supreme Court affirmed the Ninth Circuit, holding that the disclosure of referendum petitions does not as a general matter violate the First Amendment. With Chief Justice John G. Roberts writing for the majority, the Court reasoned that an "exacting scrutiny standard" is the appropriate standard for determining First Amendment challenges in the electoral context. The standard requires a "substantial relation" between the disclosure requirement and a "sufficiently important" governmental interest. Here, the state met its burden in establishing that its disclosure requirement was constitutional.
Justice Samuel A. Alito concurred. He noted that the Court's opinion did not bar "as applied" exemptions from the PRA's disclosure requirements. To obtain an exemption, a speaker must show "a reasonable probability that the compelled disclosure will subject them to threats, harassment, or reprisals from either Government officials or private parties." Justice Sotomayor, joined by Justices John Paul Stevens and Ruth Bader Ginsburg, also concurred. She agreed that in this case, given the relative weight of the interests at stake and the traditionally public nature of the referendum process, the Court correctly rejected the constitutional challenge to the PRA. Justice John Paul Stevens, joined by Justice Stephen G. Breyer, concurred in part and concurred in the judgment. He opined that this was "not a hard case" as it merely dealt with a neutral, nondiscriminatory policy of disclosing information already in the state's possession that might one day indirectly burden signatories. He did not view the burden imposed by the PRA as substantial. Justice Antonin Scalia also concurred in the judgment. He noted that a history indicates that the First Amendment does not prohibit public disclosure. He also doubted whether signing a petition fits within the definition of "freedom of speech" at all. Justice Clarence Thomas dissented. He argued that the PRA severely burdens the First Amendment right to free speech and "chills participation in the referendum process."
ORAL ARGUMENT OF JAMES BOPP, JR., ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument this morning in Case 09-559, John Doe v. Reed, Washington Secretary of State.
Mr. Bopp: Thank you, Mr. Chief Justice, and may it please the Court: No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.
Justice Antonin Scalia: What -- what about requiring disclosure of campaign contributions?
Mr. Bopp: Well, the--
Justice Antonin Scalia: Do you think that is unconstitutional?
Mr. Bopp: --This Court has upheld the disclosure in Buckley v. Valeo in 1976.
Justice Antonin Scalia: Right.
Now, why doesn't that fall within your principle that no person should be exposed to criticism for--
Mr. Bopp: Well, it could--
Justice Antonin Scalia: --his political beliefs?
Mr. Bopp: --It could potentially, and -- but this Court subjected those requirements to the appropriate constitutional First Amendment analysis, found that there was sufficiently important governmental interest, some of which are not present when we're talking about a referendum or initiative, and then also created an exception from even a generally valid statute where there is a reasonable probability of harassment of that particular individual or -- or group.
So the First Amendment analysis regarding the privacy of association, the privacy of identity and beliefs, the potential of -- of intimidation are all elements of the analysis that was employed by the Court in Buckley--
Justice Sonia Sotomayor: I'm -- I'm trying to separate out the harassment aspects of this case from the working proposition that there's some sort of freedom of association, of privacy.
Your theory, putting harassment aside, would invalidate all of the State laws that require disclosure of voter registration lists, correct?
All of those States like New York that permit public review of voter registration lists and party affiliations, et cetera -- that's illegal?
Mr. Bopp: --No.
Justice Sonia Sotomayor: That's unconstitutional?
Mr. Bopp: No.
We believe they would not.
They would certainly be subject to First Amendment analysis.
But in -- in those -- in the instance of voter registration, there are other governmental interests that are not present in petition signings for referendums.
Justice Sonia Sotomayor: Explain to me the difference.
And -- well, one other aspect of State legislative -- I can only work from New York because I know it intimately, but it is a State that also permits or requires that petitions for candidate listing on the ballot be public as well.
New York relies in part, as this State does, on the public reviewing those petitions.
Would that be invalid as well, for a candidate's running?
Mr. Bopp: Well, we believe it would be subject to First Amendment analysis.
But, again, there are different governmental interests when you have candidates involved--
Justice Sonia Sotomayor: So explain to me what the difference is in those three situations.
Mr. Bopp: --Well, one is you have candidates involved--
Justice Sonia Sotomayor: With -- with the State's interest.
Mr. Bopp: --One is you have candidates involved.
And this Court recognized in Buckley that there were disclosure interests that related specifically, and actually only, to candidates.
For instance, people who contribute to a candidate, that information, to the voter, can signal the interests that the candidate, once he or she takes office, will be responsive to.
When we have an initiative, we know what the law is that is being voted upon.
It's not a matter of -- of electing a representative.
Justice Sonia Sotomayor: You don't think that -- putting aside this kind of referendum, just a hypothetical referendum having to do with a certain tax scheme -- you don't think the voters would be interested in knowing what kinds of people in what occupations are interested in that particular tax benefit or not?
Mr. Bopp: Well, a few -- few might be, but we think this is marginal information.
First, they are adopting a law.
And so we know what the law is.
And -- and while it might be marginal information for a few people, once the measure qualifies for the ballot, this is only -- the petition signature and distribution is only for a very limited governmental interest.
Chief Justice John G. Roberts: Counsel--
Mr. Bopp: And that -- and that--
Chief Justice John G. Roberts: --I'm sorry, go ahead and finish your answer.
Mr. Bopp: --And that limited governmental interest is to preserve State money, to not conduct an election on the matter unless there is sufficient public support.
Chief Justice John G. Roberts: Now, counsel, the responses you have given to a couple of the questions has been that the First Amendment analysis would apply.
But given you have a facial challenge, is that enough?
Don't you have to indicate that the First Amendment analysis would prevail in either all of the other cases, most of the other cases, a significant portion?
This is a facial challenge.
And if the challenge is going to fail in some of those other cases, I think your facial challenge fails as well.
Mr. Bopp: --Well, we're only challenging the application of the Public Records Act to petitions and referendum petitions.
We're not challenging it as it would be applied to petitions to put people on the ballot.
Chief Justice John G. Roberts: So we have to decide, in assessing your claim that, no matter what the referendum issue was, that there's a significant intrusion on First Amendment rights?
Mr. Bopp: Yes.
Chief Justice John G. Roberts: So that if, for example, the referendum involves a bond issue as to which people may have particular views, but they're not going to get terribly excited about it, we'd still have to say that that's protected under the First Amendment?
Mr. Bopp: Well, actually, under -- with modern technology, it only takes a few dedicated supporters, and a computer, who are willing to map -- to put this information on the Internet, MapQuest it, as they did with respect to the contributors of Proposition 8, which resulted in -- and then encourage people to harass and intimidate them, which resulted in hundreds of examples of harassment--
Chief Justice John G. Roberts: Well, my point is, though, you're not likely to get that with respect to, you know, a debt issue, raising the debt ceiling from 0.8 percent to 0.9 percent.
You're not going to get a crowd outside your house because you signed that petition.
Mr. Bopp: --Well, it may not manifest itself in -- in any particular initiative.
We agree with that, but we think the potential is there, and there is usually a group of supporters of any measure that, you know, are passionate about that particular issue--
Justice Ruth Bader Ginsburg: But -- but don't you have -- I thought we were dealing with count 1 of the complaint.
Mr. Bopp: --Yes.
Justice Ruth Bader Ginsburg: Count 2 would be the counterpart to the exception that's made from the disclosure requirement with regard to contributions with certain organizations whose members might be harassed.
Mr. Bopp: Well, with this--
Justice Ruth Bader Ginsburg: That's -- that's not -- that would still be open if you lose the first part of this case.
So going back to the question you were asked, how does this differ -- that Justice Scalia asked -- how does this differ from the contributor who says, well, I might be harassed?
The contributor would have an opportunity to show that.
Mr. Bopp: --Buckley dealt with that exact question.
And first -- the first step of the analysis is whether or not the law is -- is valid under the First Amendment.
And then there is an exception to even a valid constitutional -- a constitutionally valid law.
Justice Ruth Bader Ginsburg: So, that's why I'm asking you why, on the first part, should it be any different, as long as you have the door open to show that if you were going to suffer reprisals, harassment, that an exception would have to be made?
Mr. Bopp: Well, we don't think that the exception is a substitute for considering the initial validity of the law, which--
Justice Ruth Bader Ginsburg: May I -- may I ask you one -- something that was not in your brief, but was in the Secretary's brief.
Is this list available to Project Marriage?
And specifically on page 34 of Secretary Reed's brief, the statement is made that the sponsoring organizations sometimes sell or trade these lists.
They use them for fundraising purposes.
So that would be the end of a person's privacy, at least on one side.
Is that true, that the initiative sponsor uses these lists?
Mr. Bopp: --Yes.
Justice Ruth Bader Ginsburg: Yes?
Mr. Bopp: Yes, this is an act of private association.
The petition signers are associating with the referendum committee for purposes of placing this measure on the ballot--
Justice Ruth Bader Ginsburg: They don't say: Now, I agree you can use my name for fundraising purposes.
But that's -- it's implicit, you say, in their signing the petition that the--
Mr. Bopp: --Well, what--
Justice Ruth Bader Ginsburg: --signature collector can sell the names, use them for its own fundraising purposes?
Mr. Bopp: --What is implicit is they are associating with this group for a purpose, and that is support for, in this case, Referendum 71.
And so they use those names for valid purposes.
Justice Antonin Scalia: Mr. Bopp, do you have any case in which we have held that the First Amendment applies to activity that consists of the process of legislation, of legislating--
Mr. Bopp: --Yes, Buckley II.
Justice Antonin Scalia: --or of adopting legislation?
What is that?
Mr. Bopp: Buckley II.
You struck down the requirement that the person who is soliciting signatures self-identify.
Justice Antonin Scalia: That is--
Mr. Bopp: That is a process--
Justice Antonin Scalia: --Soliciting signatures is not taking part in the process of legislating.
Mr. Bopp: --Well--
Justice Antonin Scalia: The person who requests a referendum is taking -- when there's a certain number of signatures required to achieve it, is taking part in that.
And in light of the fact that for the first century of our existence, even voting was public -- you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for -- 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.
Mr. Bopp: --Well, the--
Justice Antonin Scalia: You are asking us to enter into a whole new field where we've never gone before.
Mr. Bopp: --Well, with all due respect, you have already opined in Buckley II that the person on the other side of the clipboard is protected by the First Amendment.
Justice Ruth Bader Ginsburg: I don't think that's -- that's true of Buckley II.
What was -- what this Court said could not be done is that the solicitor could not be made to wear a badge that says "I am a paid solicitor", but that the solicitor's name had to be identified for the State.
Certainly, the solicitor -- there was an affidavit, and there was the filings with whatever was the State agency.
So what was -- what this Court said could not be done was this kind of in-your-face big button that says "I am a paid solicitor", but the solicitor's name and address certainly had to be disclosed.
Mr. Bopp: That is true.
You've correctly described Buckley II.
But as we can see in the facts of this case, the public disclosure of the petition names in this case -- there was a planned harassment and intimidation of these voters by--
Justice Anthony Kennedy: Well, let me -- let me ask you, could the opponents of a particular ballot measure organize a boycott for -- and picket businesses whose managers had supported that boycott?
Mr. Bopp: --Yes.
Justice Anthony Kennedy: Had supported that initiative?
Mr. Bopp: Yes.
Justice Anthony Kennedy: Well, if that's so, then under Claiborne Hardware, which I -- I notice you didn't cite in your brief, but if -- if that's so, then it seems to me that the State's -- or that -- that the signers' interest in keeping their names private is somewhat diminished.
Mr. Bopp: --Yes.
Justice Anthony Kennedy: It's a First Amendment activity.
Mr. Bopp: But what we're -- but what is involved here that is not involved there is the requirement by the government that you publicly disclose your identity and beliefs on a matter that then--
Justice Ruth Bader Ginsburg: But -- just--
MR. BOPP -- subjects you to the boycott.
Let me stop you there, because I think your -- your own brief, I think you said twice that you cannot tell anything about the signer's belief from the mere signature.
You said it could be support for -- for the proposition or it could be just support for letting the people decide.
Mr. Bopp: --That is--
Justice Ruth Bader Ginsburg: Or it could even be, you say, that this solicitor is pesky, and in order to placate the solicitor, to get rid of the solicitor, we'll just sign.
So you -- you have said that -- that the signing itself is ambiguous.
You don't know what the reason is.
It doesn't necessarily mean that the person is a supporter of the proposition.
Mr. Bopp: --But, with all due respect, we did not say the third.
We did say the first and the second.
And -- but either of those are political statements.
The highlighted box at the top, you know, states -- states that by signing R-71, we can reverse that decision, meaning the passage of a law, and protect marriage between a man and a woman.
Justice Ruth Bader Ginsburg: May I call your attention to page 20 of your reply brief?
Because I don't think that your response was correct.
You say: Do petition signers support the repeal, simply indicate they would like public election to be held, or simply sign to avoid any further discussion with the petition circulator?
Mr. Bopp: I acknowledge that we said that, Justice Ginsburg.
And, of course, the second statement is -- and which I think is the dominant statement and certainly sufficient -- and that is that we want a measure to be placed on the ballot in order for the people to vote.
That is one of the central--
Justice Samuel Alito: Well, Mr. Bopp, if a voter -- if the legislature passes a statute and someone is -- is satisfied with that statute, how likely is it that that person is going to sign a petition to have a referendum to see whether the statute should be blocked?
Mr. Bopp: --I think it's very unlikely.
But it -- we acknowledge it's possible, but we think it's very unlikely.
Justice Samuel Alito: It's possible--
Justice Anthony Kennedy: But--
Justice Samuel Alito: --but if you were in the real world, if you were to poll the people who sign a referendum petition with respect to a statute that was passed by the State legislature, what percentage do you think would be opposed to that legislation?
Mr. Bopp: Very few.
Justice Anthony Kennedy: --And so Justice Alito's question points out that this would be a very slim basis upon which to rest a holding in your favor.
And just to go back to the line of questions of the first, the State of California has very complicated referendum and initiative matters.
Don't you think it's relevant for the public to know that, say, a public employees union had paid solicitors to put those signatures on the ballot, or that the Chamber of Commerce or the National Association of Manufacturers had paid solicitors to put this on the ballot?
Isn't that part of assessing the -- the reasons why this initiative was proposed?
And isn't that vital to the voters -- to the voter in making an informed decision?
Mr. Bopp: Well, actually, after your Buckley II decision, the Ninth Circuit struck down the requirement of disclosing the paid circulators.
And, of course, in California, petitions are not public.
Justice Ruth Bader Ginsburg: They did that.
It wasn't due to Buckley II, because as you just acknowledged, under Buckley II, the solicitor is disclosed.
Mr. Bopp: Well, the Ninth Circuit thought it was Buckley--
Justice Anthony Kennedy: Correct me, but the point is, isn't -- isn't there an interest in knowing this information?
Not -- not that it's paid.
Mr. Bopp: --There is no evidence--
Justice Anthony Kennedy: We'll leave that out.
But -- but to know that -- that -- the persons that supported the amendment.
Mr. Bopp: --There's no evidence in the record that that is pertinent information, and, at most, we think it is marginal information.
Justice Sonia Sotomayor: Counsel, if we create this right of -- this constitutional right of association in the manner that you are describing it, why is it limited to the voting area?
Would we be inviting review if a group of citizens get together and send a letter to an agency that says please pass X regulation, or rescind Y regulation?
Would the agency be prohibited from making that letter public?
Mr. Bopp: Well, potentially.
And -- and this Court -- I -- because it would be required to be subject to a First Amendment analysis.
It's this Court that created, in the NAACP case--
Justice Sonia Sotomayor: So you're -- you're suggesting--
Mr. Bopp: --the right of private association.
Justice Sonia Sotomayor: --that when a petitioner or a person engages in political discourse with the government, that they -- when they choose to do it, because the government is not compelling them to write to it; it's not compelling them to sign the referendum.
Mr. Bopp: And they're not compelling Ms. McIntyre to distribute her brochure, either.
But this Court held that--
Justice Sonia Sotomayor: --But it's -- but Ms. McIntyre wasn't asking the government to engage its process in her favor.
She was asking for political reform, but she wasn't asking to engage the government process on her behalf.
Mr. Bopp: --Well, the government, you know, has a lot of options.
For instance, they don't have to conduct elections for the election of judge.
But if they opt to do that and provide that procedure, well, then, the First Amendment applies to the political speech--
Justice Samuel Alito: Well, to follow up on Justice Sotomayor's question, do you think an agency could say, if you want to comment on proposed -- on a proposed rule, you have to disclose to us your name and your address and your telephone number and your political affiliation, and all sorts of -- your marital status and your income level and all sorts of other demographic information?
Mr. Bopp: --And your employer, as in this case here.
Justice Samuel Alito: Could they do that?
Mr. Bopp: No -- no, because there is no sufficient governmental interest that would justify it.
Justice Antonin Scalia: Not even just your name, so they can check that this thing isn't phony and that all the names on it aren't -- aren't made up by one person?
Mr. Bopp: They, of course, can -- can check that.
Justice Antonin Scalia: Of course, they can.
So they can get your name, right?
Mr. Bopp: Yes, they can get your name--
Justice Antonin Scalia: Okay.
Mr. Bopp: --and we're not objecting to filing of a petition.
Justice Antonin Scalia: But you're objecting to the public being able to check whether the agency is indeed finding out whether this is a genuine petition or not, correct?
Mr. Bopp: No.
No, I'm not objecting to that.
Justice Antonin Scalia: Really?
Mr. Bopp: They have procedures to check and verify these signatures that do not involve public disclosure.
Justice Antonin Scalia: Didn't you have some options, too?
Have you started a referendum to repeal the -- the California law that requires disclosure?
Mr. Bopp: California law does not require disclosure of the petitions, and that has been upheld by the courts of California.
And you can verify these signatures.
Justice Antonin Scalia: I don't understand.
I thought that's what you're challenging.
Mr. Bopp: Well, but you asked about California--
Justice Antonin Scalia: --I'm sorry.
Mr. Bopp: --if I heard your question.
Justice Antonin Scalia: Washington.
I got the wrong State.
Mr. Bopp: Okay.
Justice Stephen G. Breyer: Can you go back--
Justice Antonin Scalia: The people of Washington -- the people 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.
Mr. Bopp: --In a sense--
Justice Antonin Scalia: Now, if you don't like that, I can see doing it another way.
But -- but the people of Washington have chosen to do it this -- this way.
Mr. Bopp: --Actually, for--
Justice Antonin Scalia: And you're saying that the First Amendment absolutely forbids that.
Mr. Bopp: --Actually, for a century, they chose not to do this.
It wasn't until 2006--
Justice Antonin Scalia: That's fine.
Proving my point.
Mr. Bopp: --They did not publicly disclose the petitions for a century.
Justice Antonin Scalia: It might have been a good idea.
Mr. Bopp: Well--
Chief Justice John G. Roberts: I suppose the -- a majority of the voters in Washington decided that, and one of the purposes of the First Amendment is to protect minorities.
Mr. Bopp: --Well, only in the most general sense.
They adopted a Public Records Act.
They didn't adopt a law that specifically required the disclosure of these petitions.
But in a general sense, they did.
Justice Ruth Bader Ginsburg: Mr. Bopp, this is not a peculiar thing to the State of Washington; that's correct, isn't it?
Aren't there about 20-odd States that require disclosure of the names of signers to initiatives, referenda?
Mr. Bopp: That is true.
Some -- some in their initiative and referendum statute, because they actually provide some public input on verification where Washington does not; others under their Public Records Act.
Some do not, such as California.
Justice Ruth Bader Ginsburg: So -- but what you're saying with respect to Washington would go for most of those other States that have -- that have public disclosure of initiative and referendum petitions.
Mr. Bopp: Well, one -- one thing we say is different between Washington and these other States is that Washington provides no way for the public, even if they get access to the petitions, to participate in the verification process.
The only thing the public can do is have -- observe -- a limited number of observers.
These observers are prohibited from--
Justice Ruth Bader Ginsburg: I thought that there were instances where the State official missed something and a member of the public who had access to the list of signers said: Wait a minute; I know so-and-so was my neighbor who died 5 years ago.
Mr. Bopp: --That's not allowed in the State of Washington.
The instructions from the Secretary of State is while you can have observers to observe the process, the people--
Justice Ruth Bader Ginsburg: But you mean if -- that was over.
It passed the screen of the Secretary of State.
It's disclosed to the public.
If someone then said you've got a lot of dead souls on these lists, the State would do nothing about it?
Mr. Bopp: --There is absolutely no procedure under Washington statute to do anything with that information.
Justice Ruth Bader Ginsburg: Well, we'll ask -- we'll ask the--
Mr. Bopp: Nothing.
Justice Ruth Bader Ginsburg: --We'll ask the Attorney General of Washington.
Mr. Bopp: Yes.
Justice Sonia Sotomayor: Weren't two of the Petitioners here -- weren't two of the Petitioners here seeking the list so that they could go over the certification process the State had done to ensure that they had certified all the right people, et cetera?
Mr. Bopp: Well, one of -- one of the intervenors sought an exception from the -- from the injunction, which we did not object to, that -- that they would have access to the list.
But under confidentiality and protective order--
Justice Sonia Sotomayor: I'm not going to the privacy questions.
You responded to Justice Ginsburg by saying that there was no way to challenge the State's process of validation, and that -- I don't think that's correct.
Mr. Bopp: --With all respect, I didn't say that.
Justice Sonia Sotomayor: Oh.
Mr. Bopp: What I -- what I said is there's no role for the public in verifying signatures.
You can ask for judicial review--
Justice Sonia Sotomayor: That's assuming the answer, meaning if they don't have the right to access, they can't.
But, legally, they can challenge it if they find on the petitions that things were erroneously counted by the State.
They can go into court and prove that.
Mr. Bopp: --The only thing that they could do is request that the court does its own count.
In other words, there's judicial review available.
But the public has no role in the verification, but they can trigger judicial review.
And then the court conducts its own count.
In other words, this is not an adversary process in which people come in and present evidence of -- of people's -- of invalid signatures.
Justice Ruth Bader Ginsburg: Why would you involve the court?
If the State's -- the executive representative of the State says: Oh, we missed that.
Now we're going to have to deal with it.
We don't need any court to order us to do it.
Mr. Bopp: Well, the observers can observe the process, and if they feel--
Justice Ruth Bader Ginsburg: No, this is after the observers.
Mr. Bopp: --Well, but--
Justice Ruth Bader Ginsburg: --We're talking about a member of the public noticing that there are people on the list who shouldn't be there.
Mr. Bopp: --Well, the -- the observer -- under the Washington procedure, observers can observe the process, and if they feel, or if anyone feels, that there has been an inadequate job in -- in verification, then they can ask for judicial review.
And then the court conducts the--
Justice Ruth Bader Ginsburg: Why would they ask for judicial review instead of going first to the State's Attorney General and saying, look, you -- your people missed it?
Mr. Bopp: --Well, there's no procedure for that.
Justice Ruth Bader Ginsburg: Why involve the court?
Mr. Bopp: That's not -- there's no procedure for that.
You know, if they wanted to involve the public -- and that's the difference, I said, between this procedure and other procedures.
They're claiming the need for public disclosure so the public can be involved in verification.
Well, there's no procedure--
Justice John Paul Stevens: Isn't there another--
Mr. Bopp: --to be involved in verification.
Justice John Paul Stevens: --Isn't there another possible public interest?
Would it be a legitimate public interest to say I'd like to know who signed the petition because I would like to try to persuade them that their views should be modified?
Is there a public interest in encouraging debate on the underlying issue?
Mr. Bopp: Well, it's possible, but we think this information is marginal.
In other words, the -- it's much more important--
Justice John Paul Stevens: Well, it does identify people who have a -- a particular point of view on a public issue.
And if you had the other point of view, don't you have an interest in finding out who you'd like to convince to change their minds?
Mr. Bopp: --Well, we -- we think it's a -- a very marginal interest.
The Ninth Circuit recently ruled that if you give a small contribution to an initiative, there's not -- I mean, nobody cares.
So why should it be publicly disclosed when it's so marginal?
Justice Antonin Scalia: What about just -- just -- what about just wanting to know their names so you can criticize them?
Mr. Bopp: Well--
Justice Antonin Scalia: Is -- is that such a bad thing in a democracy?
Mr. Bopp: --Well, what is bad is not the criticism; it's the public -- it's the government requiring you to disclose your identity and beliefs.
Justice Antonin Scalia: But part of the reason is so you can be out there and be responsible for the positions you've taken.
Mr. Bopp: Well, then why don't they require both sides?
Justice Antonin Scalia: So that people -- people can criticize you for the position you have taken.
Mr. Bopp: Then why don't they require both sides if that was the purpose?
Justice Antonin Scalia: What do you mean, "both sides"?
The other side hasn't signed anything.
When they sign something--
Mr. Bopp: Well, but the other side--
Justice Antonin Scalia: When they sign something, they'll be out there for public criticism as well.
Mr. Bopp: --Okay.
But this is a one-way street.
Justice Antonin Scalia: Oh, this is such a touchy-feely, oh, so sensitive about -- about any--
You know, you can't run a democracy this way, with everybody being afraid of having his political positions known.
Mr. Bopp: I'm sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats--
Justice Ruth Bader Ginsburg: Well, then that's--
Justice Antonin Scalia: Well, that's bad.
The threats should be moved against vigorously--
Mr. Bopp: --And -- and--
Justice Antonin Scalia: --but just because there can be criminal activity doesn't mean that you -- you have to eliminate a procedure that is otherwise perfectly reasonable.
Mr. Bopp: --But all we're asking for is a First Amendment analysis of the compelled disclosure of the identity of these people and whether or not these interests are sufficient.
Could I reserve the balance of my time?
Chief Justice John G. Roberts: Thank you, Mr. Bopp.
ORAL ARGUMENT OF GENERAL ROBERT M. McKENNA ON BEHALF OF THE RESPONDENTS
Mr. McKenna: Mr. Chief Justice, and may it please the Court: I'd like to begin with the question of how the public can bring to the attention of the government that errors and fraud have been discovered.
First of all, it's important to understand that the petitions do not become public records after the verification process but, in fact, are made available as public records before the verification process even begins.
This is because the Secretary of State's first step after receiving submitted petitions is to take them to his archiving section and to have them digitized.
As soon as they're digitized, they're available on disks for anyone who requests them.
Then the verification process begins.
During the verification process, it is possible--
Justice Sonia Sotomayor: How much time are we talking about in those processes?
Mr. McKenna: --The verification process, Justice Sotomayor?
Justice Sonia Sotomayor: Yes.
Mr. McKenna: The verification process will depend on how many signatures have been submitted--
Justice Sonia Sotomayor: No, no, no.
I'm trying to get the relationship between the disks being made available and the verification process.
So is there a time for the public to look through the disks before the people who are sent into the room are sent into the room?
Justice Ruth Bader Ginsburg: That's what you've just said--
Mr. McKenna: --Yes, they're--
Justice Ruth Bader Ginsburg: --that they're -- that they are immediately available on the disk, and so while the checking is going on by the Secretary, the public has the list.
Is that what you've just said?
Mr. McKenna: --Yes, that's correct.
For example, in the case of Referendum 71, the proponents of the referendum submitted the petition sheets on Saturday, July 25, 2009, and on Tuesday, July 28, a records request was already submitted.
And so they can obtain records--
Chief Justice John G. Roberts: Would these records--
Justice Anthony Kennedy: Was that pursuant to the Public Records Act that we're talking about--
Mr. McKenna: --Yes.
Justice Anthony Kennedy: --or was that part of the initiative and referendum structure before the Public Records Act was passed?
Mr. McKenna: Justice Kennedy, this is part of the Public Records Act.
This is as a result of the Public Records Act that these petition sheets are made available.
Chief Justice John G. Roberts: --Counsel--
Justice Anthony Kennedy: So -- all right.
So this -- the public record -- pardon me.
The -- in California, we call it an initiative and referendum process -- existed and was in place before the Public Records Act added this additional feature of disclosure?
Mr. McKenna: Yes, that's correct.
Justice Anthony Kennedy: So there was a judgment at one time by the State of Washington that it didn't -- that it didn't need the public records disclosure?
Mr. McKenna: Well, when the initiative and referendum processes were created by public vote on a constitutional amendment of 1912, there was no Public Records Act at all.
And the Public Records Act, an Act of general applicability, was adopted by the voters in 1973 as part of an initiative which also enacted comprehensive campaign finance reform.
Chief Justice John G. Roberts: --Counsel, if the State had a law that you could disclose voters and for whom they voted, would that implicate First Amendment interests?
Mr. McKenna: Yes, Mr. Chief Justice, we would -- we do believe that First Amendment interests would be implicated by revealing how people voted, and we don't see a legitimate State interest in knowing how people voted, only in who voted--
Justice Antonin Scalia: So the country was acting unconstitutionally for a whole century before we adopted the Australian secret ballot?
Do you really think that?
Mr. McKenna: --No.
No, Justice Scalia.
Justice Antonin Scalia: That it was unconstitutional--
Mr. McKenna: --No, Justice Scalia.
Justice Antonin Scalia: --for a whole century not to have a secret ballot?
Mr. McKenna: No, Justice Scalia, I didn't say that I thought that the secret ballot was constitutionally required.
I was asked by the Chief Justice whether some First Amendment interests would be implicated.
They probably would be.
Chief Justice John G. Roberts: What would the First Amendment interests be?
Mr. McKenna: Well, the First Amendment interest in how you vote?
Chief Justice John G. Roberts: Yes.
Mr. McKenna: You know, it might be implicated by a potential chill from voting, if you know your vote is going to be revealed.
Chief Justice John G. Roberts: Do you think having your name revealed on a petition of this sort might have a chilling effect on whether you sign it?
Mr. McKenna: Mr. Chief Justice, some chill may result, just as some chill may result from having your campaign contributions disclosed or the fact that you have registered to vote and provided your name, address, your voting history is being disclosed.
So some chill might be -- might result, but we do not think that it is significant enough.
Chief Justice John G. Roberts: You don't think revealing that you're a voter has the same chilling effect as revealing how you voted, do you?
Mr. McKenna: No, I do not.
I think how you voted would have a much greater chilling effect than the fact that you are registered to vote.
And -- and, of course, this Court has not ruled on whether the secret ballot is, you know, a constitutional right.
If -- if it is, then is town hall voting in New England unconstitutional?
Is the caucus system in Iowa for presidential candidates unconstitutional?
The Court in this case does not have--
Justice Samuel Alito: --in the last questions--
Chief Justice John G. Roberts: Well, I thought you told me that the First Amendment interests were implicated with respect to the secret ballot, that you couldn't require people to reveal how they voted.
Mr. McKenna: --We don't -- we don't know if this Court would rule that the vote could never be revealed.
We know that in some places, votes are done in public.
We know that before the late 1800s, there was no secret ballot.
We just -- we don't know what the constitutional ruling would be.
But we -- we do know that in this case, it's not necessary for the Court to reach that -- that determination, because in this case--
Justice Samuel Alito: --Well, I'd like to know how far you -- you are -- you want to go.
You say in your brief that the availability of the referendum signature petitions allows Washington voters to engage in discussion of referred measures with persons whose acts secured the election and suspension of State law.
So would -- would it be consistent with the First Amendment to require anybody who signs a petition to put down not just the person's name and address, but also telephone number, so that they could be engaged in a conversation about what they had done?
Mr. McKenna: --It -- it would depend on the strength of the State interest in having the telephone number.
The State does not have an interest in the telephone number on the petition form, because the State has -- only needs to know from the petition form the name and the address in order to verify--
Justice Samuel Alito: I thought that you were saying that one of the interests that's served by this is to allow people who -- to allow Washington citizens to discuss this matter with those who signed the petition.
So putting down the telephone number would assist them in doing that.
Mr. McKenna: --It -- yes, it probably would make it easier for people to contact.
Justice Samuel Alito: So you would--
Mr. McKenna: But the policy--
Justice Samuel Alito: --You would endorse that?
Mr. McKenna: --That would be a policy determination for the legislature to make, Justice Alito.
Justice Samuel Alito: No, I'm not asking the policy question.
I'm asking whether the First Amendment would permit that.
Mr. McKenna: I believe it could permit that, yes, Justice Alito.
Justice Samuel Alito: Now, one of your Co-Respondents says that supplying this information provides insight whether support comes predominantly from members of particular political or religious organizations.
Would it be consistent with the First Amendment to require anybody who signs a petition to list the person's religion?
Mr. McKenna: No, I do not believe it would, Justice Alito.
Justice Stephen G. Breyer: Suppose that in 1957 in Little Rock, a group of Little Rock citizens had wanted to put on the ballot a petition to require the school board to reopen Central High School, which had been closed because there was a sentiment in the community that they didn't want integration.
And it was pointed out that if they signed this petition, there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.
Now, is there no First Amendment right in protecting those people?
And if there is, how does it differ from your case?
Mr. McKenna: Justice Breyer, that is count 2.
That is count 2 of the Petitioners' complaint.
This Court ruled as recently as Citizens United that such situations should be evaluated on a case-by-case basis to evaluate the reasonable probability of threats, harassments, and reprisals.
Justice Antonin Scalia: So you -- you would have no objection to as an-applied challenge to disclosing the names of individuals to a particular cause, where it is demonstrated that the opponents of that cause are violent and will do violence to the people who signed the petition?
Mr. McKenna: --Yes, Justice Scalia.
That would be the Socialist Workers Party case.
This -- this Court has ruled that, on a case-by-case basis, it is possible that some information otherwise disclosed--
Justice Anthony Kennedy: What about a business boycott?
Justice Antonin Scalia: So this is just a general challenge to ever, ever disclosing the names of petition signers?
Mr. McKenna: --Of any type of petition including nominating petitions--
Justice Antonin Scalia: Right.
Mr. McKenna: --initiative petitions, and the rest.
Justice Anthony Kennedy: What about a business boycott?
Suppose that were a -- a likely outcome of disclosing the name?
Mr. McKenna: Well, of course, boycotts have been upheld under the First Amendment in Claiborne Hardware, and so if someone wanted to boycott a business because it turned out that the manager of the business had been a supporter of a particular ballot measure, that would be allowable, of course, to that person choosing to boycott.
Chief Justice John G. Roberts: Counsel, your answer to Justice Breyer was that they can bring an as-applied challenge.
Now, that as-applied challenge would be small comfort unless the names were protected pending the resolution of that challenge, correct?
Mr. McKenna: Yes.
Chief Justice John G. Roberts: So you think a stay should be granted in this case to allow the Petitioners to pursue an as-applied challenge.
Mr. McKenna: Yes, of course -- yes, they could apply for another preliminary injunction if this Court upholds the court of appeals.
They were able to obtain that preliminary injunction in this case, which is why these petition forms have not been released to date, except under a protective order by the court to the opponents.
Justice Ruth Bader Ginsburg: And that would--
Chief Justice John G. Roberts: Do you think that the disclosure of the names, pending the resolution of their as-applied challenge, would subject them to incidents of violence and intimidation?
Mr. McKenna: We -- there is no evidence of that in the record.
There's no evidence--
Justice Ruth Bader Ginsburg: --Does -- is it--
Chief Justice John G. Roberts: There's no evidence -- there's no evidence of episodes of violence or intimidation?
Mr. McKenna: --Involving the Referendum 71 signers?
The evidence in the record is about people who were out circulating petitions, people who were out, you know, campaigning for the petitions, the campaign manager for the measure.
But none of the evidence in the record speaks to petition signers, and none of the evidence in the record speaks to petition signers for other, similar measures which were cited by the Petitioners.
Justice Ruth Bader Ginsburg: --Is that because nobody got to count 2?
And the district court -- this whole case in the lower courts was on count 1 alone; wasn't that so?
Mr. McKenna: Yes, that is -- yes, that is correct.
Justice Ruth Bader Ginsburg: And count 2 is the one that deals with the harassment.
Mr. McKenna: That is true, Justice Ginsburg.
Of course, in several other States, Arkansas, Florida, and Massachusetts, which had similar measures regarding gay civil rights or same-sex marriage on the ballot -- in those three States, the petition forms were obtained under public records, were put on the Internet, and no evidence has been provided that's in the record that anyone who signed any of those petitions in those three States was subjected to harassment--
Justice Samuel Alito: Well, let's say somebody is thinking of circulating a petition on a sensitive subject and fears that people may be dissuaded from signing because they fear retaliation.
At what point could they bring this as-applied challenge?
Do they have to -- could they do it before they even begin to circulate the petition, arguing that if -- if these names -- if people are not assured ahead of time that their name and address is not going to be revealed to the public on the Internet, they're not going to sign this?
Mr. McKenna: --Justice Alito, it would be possible procedurally for them to bring the motion for an injunction even before collecting the signatures--
Justice Samuel Alito: And how would they--
Mr. McKenna: --if they had sufficient evidence.
Justice Samuel Alito: --How would they prove that there's -- that there's a -- a threat, a sufficient threat of harassment in that particular case, before the petition is even signed?
Mr. McKenna: I believe that the sponsors of the measure would bring to the court evidence, if they have any, of -- because of the controversial nature of that particular measure, that is based on what's happened to some of the people who were planning to put the measure on the ballot.
Justice Antonin Scalia: But -- but you -- you've rejected that here.
You've said there's no evidence here that any of the petition -- petition signers were subjected to any harassment.
Mr. McKenna: Right.
Justice Antonin Scalia: Of course there isn't, because the names haven't gotten out yet.
How could you possibly demonstrate before the names get out that petition signers are going to be subjected to harassment?
Mr. McKenna: One could look to--
Justice Antonin Scalia: Or otherwise, don't insist upon evidence that these very petition signers will be harassed.
Mr. McKenna: --I imagine, Justice Scalia, that the individuals moving for that preliminary injunction would do what the Petitioners have done in this case.
They would cite to an example from another State involving a comparable measure.
Justice Antonin Scalia: And you think that would be an acceptable type of evidence?
Mr. McKenna: They could bring it into the court.
I'm not saying the court would accept it, because I don't know--
Justice Antonin Scalia: Well, if you don't think it's acceptable, then -- then -- then you're not making an argument.
Mr. McKenna: --Justice Scalia, I didn't say it couldn't be acceptable.
I'm saying this is a hypothetical, so I don't know what the evidence would look like in the hypothetical example.
Justice Samuel Alito: Well, the -- the hypothetical is that before this petition is circulated, the supporters came into court, and they said: Look what has happened in California with -- with Proposition 8.
Don't disclose -- enter an order prohibiting the public disclosure of the names and addresses here.
Would that be sufficient?
Mr. McKenna: Justice Alito, I think that the evidence would have to be very strong.
It would have to rise above criticism.
I think it would have to rise to the level of threatened violence.
It would have to rise to the level of the Socialist Workers Party case, for example, or the NAACP case.
I think the standard would be very high.
But it would be up to the trial judge to decide whether or not the evidence was sufficient to issue the preliminary injunction.
Justice Ruth Bader Ginsburg: Is it -- the State has had this procedure now for some time, and there have been controversial ballot initiatives.
Is there any history in the State of Washington that signers have been subject to harassment?
Mr. McKenna: There has not, Justice Ginsburg, and that's even though a half a dozen initiatives on a variety of topics have been released.
Another half dozen are pending.
Chief Justice John G. Roberts: What -- what's the most sensitive similar petition for a referendum?
Mr. McKenna: There has been no measure on domestic partner benefits or same-sex marriage in Washington State--
Chief Justice John G. Roberts: No, but what's the--
Mr. McKenna: --but there are other--
Chief Justice John G. Roberts: --What's -- what's the other one that's going to get people -- that's the most controversial public issue?
Mr. McKenna: --Justice--
Justice Sonia Sotomayor: Proposition 8?
Mr. McKenna: --Well--
Chief Justice John G. Roberts: No, I'm talking about in Washington, counsel.
Mr. McKenna: --In Washington State.
Mr. Chief Justice, we have had measures on assisted suicide, for example, which was very controversial, and -- and there's no evidence involving that set of petitions.
Chief Justice John G. Roberts: Was the referendum in favor or opposed to assisted suicide?
Mr. McKenna: It was -- well, the referendum challenges the assisted suicide law.
So if you vote for the referendum, you vote to uphold the legislature's adoption of that law, which -- which allowed assisted suicide.
So there have been controversial measures.
Justice Anthony Kennedy: This case will likely be controlled by our First Amendment precedents, because that's the most fully developed.
Did you look at the Petition Clause at all?
In the early days of the republic, the petitions were the way in which you communicated with your legislator.
Mr. McKenna: Yes.
Justice Anthony Kennedy: And I tried to look it up.
I have a recollection, but I'm not sure, that those petitions were sometimes put in the Congressional Record.
But did you look at the history of the Petition Clause?
Mr. McKenna: Justice Kennedy, we have considered the history of the Petition Clause, and we see a basic difference between the kinds of petitions under the Petition Clause and the petitions at issue here because, essentially, petitioning the government under the Petition Clause is asking the government to do something.
You're petitioning them: Please do something.
The petitions for a referendum or an initiative are telling the government to do something.
The petition form says that I, the signer, am directing the Secretary of State to conduct an election.
And by submitting these petitions in a referendum, I am suspending the law which the legislature has already approved until the election has taken place.
Tell versus ask.
I think that's a pretty big -- a significant difference.
Justice Anthony Kennedy: But, of course, that can cut the other way, too, because then it's more like a vote.
And there -- there is strong interest in keeping the -- the vote private.
Mr. McKenna: And, Justice Kennedy, I'd like to speak to that question, because several Justices asked: Well, what can we tell from what, you know, someone who signed?
Do we know how they're going to vote.
I -- I agree that many people signing a petition are going to vote in favor of -- in the case of an initiative, in favor of the law the initiative would put on the ballot.
But also we know from the social science research, which is cited, for example, in the Direct Democracy Scholars green brief, that many people sign simply because they believe it's important for the -- for the public to have an opportunity to vote.
And, of course, as the Petitioners have acknowledged and we also point out, some people vote just to get around the circulator and get into the store.
Chief Justice John G. Roberts: What percentage -- what percentage of the people who signed this petition to put this law on the referendum do you think signed it because they think these sort of things should be generally put to a public vote as opposed to because they opposed the law?
Mr. McKenna: The percentage of people who believe simply that there should be a vote held has not been quantified by the research, except that several scholars indicate that it is significant.
So, whether it's 20 percent or 40 percent, I -- I really can't say within a certain--
Chief Justice John G. Roberts: You think as much as 20 percent of the people who signed this petition are actually in favor of the law that it's aimed to repeal?
Mr. McKenna: --It is possible.
But it's also possible some of those 20 percent don't have an opinion on the law, Mr. Chief Justice.
They simply think that there should be a vote held, and they'll make their mind up later on.
There are plenty of people who aren't aware when certain laws are -- are adopted that are subjected to a referendum, and they may not have decided at all.
In fact, one of the reasons they may sign the petition is to say: Well, I'm not sure how I'm going to vote, but, you know, I think a public vote would be a good idea.
So, I'm going to let it go forward to be on the ballot, and I'll decide.
Justice Samuel Alito: Can I ask you this question?
It seems to me your -- the strongest State interest here is detecting fraud.
And you mentioned that the records are digitized.
And maybe you can correct my impression of this, but it seems to me that if the records are digitized, there are very simple ways of detecting fraud that would not require the disclosure of the list to the public.
If somebody wants to see whether his or her name has been fraudulently put on the list, wouldn't it be very simple to set up a Web site where the person could put in a little bit of identifying information and see whether that person's name is on the list?
And if the -- the purpose is to see whether a particular person lives at a particular address, couldn't you just cross-reference by means of a computer program the information on the referendum with the -- with the voting lists?
So if you've got John Jones who lives at 10 Main Street, you see whether there really is a registered voter John Jones who lives at 10 Main Street?
Why does this all have to be put out on the Internet?
Mr. McKenna: Justice Alito, the -- just to be clear, you are right.
They do use computer -- computers because when -- in the verification process, the Secretary of State's staff, with the observers looking over their shoulder, will look at the petition and look up that voter in an -- in an electronic voter registration database.
This is exactly why the information is so useful to the public as well.
They have access to electronic online voter registration history as well, and they can also check.
In -- in Massachusetts, under their public records law in 2006, petition forms obtained by public records requests were put online, and over 2,000 people, as has been documented in the Lambda amicus brief, discovered that they -- their names are on petitions that they claimed did not sign, and discovered that they had been, in some cases, misled.
Justice Samuel Alito: Well, what's the answer to my question?
Couldn't you -- couldn't this be done very simply?
If I want to see whether somebody has fraudulently signed my name, very quickly go to a Web site, wouldn't be expensive to set up, put in your voter ID number, and see whether -- and your name, and see whether you're on the -- on the--
Mr. McKenna: Yes.
Justice Samuel Alito: --whether you -- somebody signed your name to the petition?
Mr. McKenna: Yes, Justice Alito, that -- that could be done.
In our State and the other States that's done when somebody requests the public records and chooses them to put online.
The State doesn't -- does not put the petition forms online itself, although, you know, other information is put online by the State.
Justice Anthony Kennedy: Do -- do we take this case on the assumption -- do you make the contention before us that the Secretary of State and those who assist it are not capable of determining whether the petition signatures are valid?
Mr. McKenna: No, we are not taking that position, Justice Kennedy.
Justice Anthony Kennedy: I mean without public disclosure?
Mr. McKenna: --What we know, Justice Kennedy, is that in dozens of States around the -- around the country, as recently as 2009 in Maryland, 2006 in Massachusetts, and so on, it was the -- it was the public who requested ballot petitions by public records request who found significant fraud and error.
This isn't just about fraud -- fraud is very important -- it's also about finding plain old mistakes which the State, Secretary of State, or auditor has missed.
That -- that does happen with regularity in this country, and we cite cases in our brief where error is not fraud, but errors in Washington State have been discovered by people who look at these public records.
Justice Antonin Scalia: Sometimes the public may not trust the Secretary of State.
Mr. McKenna: --Yes, sir.
Justice Scalia, we agree.
Justice Antonin Scalia: It -- it may be an issue in which his administration has taken a particularly firm stand, and the public may not trust the job that the Secretary of State does.
Mr. McKenna: That goes to the heart to the Public Records Act, Justice Scalia: Trust but verify.
The people did not leave to the State the idea that, well, we'll let you know what you need to know.
The people want a--
Justice Antonin Scalia: Trust but verify -- I like that.
Justice Ruth Bader Ginsburg: You did say something about this category of speech.
You said, well, this is in the category that -- it's like O'Brien.
It has speech elements and non-speech elements.
And I was trying to figure out which -- what is it in the signature that speaks and what is it in the signature that doesn't speak?
Mr. McKenna: --The speech element could be construed in the fact that someone has chosen to sign a petition which we know means they want something to be put on the ballot.
So, they favor having it on the ballot.
That -- that much we know.
But we also looked to Burdick, of course, because in this -- in -- in the Burdick decision this Court held that write-in voting could be prohibited by the State of Hawaii.
That was upheld by the court of appeals and this Court.
And this Court found that writing in a candidate's name was not even expressive conduct.
So we look to the Burdick level of intermediate scrutiny, to the O'Brien level of intermediate scrutiny for the test.
Justice Ginsburg, the other point I wanted to bring up is something about Buckley II, which--
Justice Samuel Alito: Well, what is the -- to finish your answer to Justice Ginsburg's question, what is the non-speech component of signing a petition?
Mr. McKenna: --The non-speech component is suspension of law in the case of a referendum or the legislative effect.
We believe this is a legislative act fundamentally.
Justice Samuel Alito: And what's the State's interest in regulating the non-speech component?
When you -- when you talk about the vote cast by an elected representative, of course, there's a strong interest in knowing how an elected representative voted, because the representative is answerable to the voters.
But somebody who signs a petition isn't answerable to anybody -- any other citizen.
So what's your interest?
Mr. McKenna: --The interest, Justice Alito, is knowing, first of all, that there were a sufficient number of signatures submitted to qualify the measure for the ballot.
Justice Samuel Alito: It's the fraud interest?
Mr. McKenna: That's the fraud interest.
And, secondly, there is a valid informational interest in knowing who is it exactly who's calling for this election and suspending the--
Justice Samuel Alito: Well, but how far does that go?
When I asked whether you could -- you want to know the religion of the people who signed, no, you can't do that.
How much more demographic information could be -- could be -- does the -- does the State of Washington have an interest in making publicly available about the people who support this election?
Let's say it's -- it's a referendum about immigration.
Does the State of Washington have an interest in providing information to somebody who says I want to know how many people with Hispanic names signed this, or how many people with Asian names signed this?
Is that -- that what you want to facilitate?
Mr. McKenna: --No, Justice Alito, we don't need to know that.
We need to know whether there were a sufficient number of registered voters who signed -- we need to know whether they signed more than once.
We need to know they are registered in Washington State.
Informational interest I think that you could -- the information you could collect to satisfy informational interest might include other information that's in the voter registration records.
You might want to know--
Chief Justice John G. Roberts: I thought one of the reasons you wanted to do this was so people would have information that would allow them to participate in the civic process, and there are people who -- might think it makes a difference whether a referendum was requested by -- primarily by members of a particular ethnic group or not.
So isn't -- doesn't -- I thought your brief would say the State has an interest in that type of disclosure.
Mr. McKenna: --I don't see what the valid State interest would be of knowing the ethnicity of the person.
I mean, of course, anyone could look at the petition ballot forms and, I suppose, divine something about the ethnicity based on the last name, but the State's interest doesn't go -- go to that.
That we -- we don't believe we need to know that.
We believe we need to know what is requested -- required on the -- on the petition form.
Justice Samuel Alito: Then I don't understand what information is being -- what information you think you're providing to the public.
Outside of the fraud area, if I see that John Jones from Seattle signed this petition, that tells me absolutely nothing.
Mr. McKenna: Well, Justice Alito, it might -- if you know John Jones, that would tell you something.
Number two, we know from the -- we know from the, you know, Direct Democracy Scholars green brief that intermediaries and especially the press and sometimes social science researchers and others will -- will look at the names, and they'll be able to tell, for example, that a large number of employees at one company signed a measure; maybe it's a measure that would cut a tax break for a particular industry.
Or perhaps members of a union, in large numbers, have signed.
They have been--
Chief Justice John G. Roberts: How can they--
Mr. McKenna: --able to provide that information.
Chief Justice John G. Roberts: --How can they find that out with just the name and address, that a large number of people from a company signed it?
Mr. McKenna: Well--
Chief Justice John G. Roberts: You don't have to put on who you work for, do you?
Mr. McKenna: --No, you do not.
I'm saying intermediaries might discover this, for example, by taking a close look at who's paying for the signature gathering.
If it's paid signature gathering, they might be aware of prominent sponsors.
In fact, the -- the importance of knowing who the sponsors is, is demonstrated--
Chief Justice John G. Roberts: I'm sorry.
I'm still on the companies.
How -- how does knowing who the sponsors are tell you how many people from a particular company signed the petition?
Mr. McKenna: --Well, a voter who -- who works at that same company or does business with that same company might know that, gosh, I know these employees, and they've -- they have all signed this petition.
The press might be able to do the research to find that out.
Intermediaries do play an important role.
The last point, if I may, I wanted to make about -- about Buckley II is that the Petitioners have stressed that Buckley II struck down the requirement to wear the name badge.
But in that same decision this Court upheld the requirement by Colorado that affidavits signed by the petition circulators, including the petition circulator's name and address, can be disclosed as public records.
And the Court ruled that -- found that and compared it favorably to the badge requirement because the disclosures of public record occurred after the heat of the moment, after the moment of interactive discussion.
It happened later on.
And we believe, of all the Court's rulings, that -- that approval of the disclosure requirement of the -- of the affidavit, in contrast to the badges, is the most similar to requiring after the fact or allowing after the fact for petitions to be disclosed under the Public Records Act.
Justice Samuel Alito: You know, if somebody called your office and said I'd like the -- the home address of all the attorneys who work in the Attorney General's Office because we want to -- we want to go to their homes and have uncomfortable conversations with them--
--which is what has been alleged here, would you release that information?
Mr. McKenna: We would not, Justice Alito.
We would not release it because they can come to the office and have uncomfortable conversations with them--
--which I can personally attest happens with some regularity.
Justice Antonin Scalia: Isn't that information, at least the names of those people -- isn't it probably public information anyway?
Mr. McKenna: Yes, it is, Justice Scalia.
Justice Antonin Scalia: Can it be obtained under the Freedom of Information Act in this case?
Mr. McKenna: Yes, it can.
Their names, their office locations, their office phone numbers, their office e-mails is all a matter of public record in our State.
Thank you very much.
Chief Justice John G. Roberts: Thank you, General McKenna.
Mr. Bopp, you have 2 minutes remaining.
REBUTTAL ARGUMENT OF JAMES BOPP, JR., ON BEHALF OF THE PETITIONERS
Mr. Bopp: Thank you.
First a clarification of what we sought in the preliminary injunction.
We were -- we sought to base our preliminary injunction on both count 1 and count 2.
Of course, the district court and the Ninth Circuit did not reach -- in either case -- reach count 2.
Secondly, with respect to whether or not there's any conduct here, I don't think signing a written statement is conduct.
And, of course, by signing the statement, the person is adopting the statement on the petition, one of which involves their preference on the referendum, and the second is the -- the request that the matter goes on the ballot.
And, of course, it has no legal effect unless 122,000 make the same political statement.
Third, evidence of harassment comes in, as in Citizens United, because the weight of the interest that is required depends upon the burden of the First Amendment -- to the First Amendment speech involved; and this Court specifically referred in Citizens United to the lack of evidence of harassment of the donors that might occur if they were disclosed through the reports which Citizens United upheld.
Here we do have evidence of harassment, and we believe that that requires a greater burden in the First Amendment analysis--
Justice Ruth Bader Ginsburg: But that's out of the case up till now.
That's count 2.
You put it in your pleading, but it wasn't reached by the court.
Mr. Bopp: --Actually not.
Many is the case--
Justice Ruth Bader Ginsburg: So everybody agrees that that's still in the case.
Mr. Bopp: --Yes, but it is relevant to count 1.
Bates, for instance, looked to the evidence of harassment in protecting the membership list of the--
NAACP from disclosure.
Justice Ruth Bader Ginsburg: The court did not rule on whether there was a risk of harassment here.
Mr. Bopp: Well, that--
Justice Ruth Bader Ginsburg: It dealt only with count 1.
Mr. Bopp: --That is -- that is true, Your Honor.
There are -- there were several First Amendment claims made -- made under count 1, and this decision was -- was based on other claims.
I see my time is up.
Chief Justice John G. Roberts: Thank you, Mr. Bopp.
The case is submitted.
Unidentified Justice: The Honorable Court is now adjourned until monday next at
Chief Justice John G. Roberts Jr.: I have the opinion of the Court this morning in case 09-559, Doe versus Reed.
The Constitution of the State of Washington allows citizens to challenge state laws by referendum.
For a proposed referendum to make it onto the ballot more than a 120,000 Washington voters must sign a referendum petition requesting that the law be put to a vote of the people.
Under Washington law petition signers must also list there address and the county in which they are registered to vote or their signature will not count.
After gathering the signatures the referendum proponent files the petition with the Secretary of State who determines whether the petition has an enough valid signatures to put the referendum on the ballot.
The Washington Public Records Act authorizes private parties to obtain copies of government documents and the state construes that act to cover submitted referendum petitions.
This case arises out of a state law that was passed to extend certain benefits to same-sex couples.
A group of citizens circulated a petition to challenge that law.
More than 137,000 Washington voters signed the petition and the referendum which was labeled R-71 qualified for the November 2009 ballot.
The voters ultimately approved the state law by a vote of 53% to 47%.
Now several groups including the respondents here invoked the Washington Public Records Act to obtain copies of the R-71 petition which of course included the names and addresses of the signers.
Certain petition signers and the petition sponsor objected arguing that disclosure would violate their First Amendment rights.
The petition signers made two arguments.
First they argued that releasing identifying information on any petition would violate the First Amendment.
Second they argued that releasing the signatory information on their particular petition would violate the First Amendment because releasing that information would subject them to threats, harassment and reprisals for their support of the referendum.
Both the District Court and the Court of Appeals below addressed only plaintiff's first argument, the more general one applicable to all petitions and that is the only argument that is before us in this case.
The plaintiff's second argument the one that is specific to their referendum petition is still pending before the District Court.
The State contends that we can quickly dispose of the plaintiff's case because no First Amendment interest is at – no First Amendment interest at all is implicated by the act of signing the petition.
Signing a petition the State argues is part of the legislative process not subject to analysis under the First Amendment.
An individual expresses a view on a political matter when he signs a petition.
In most cases the individual's signature will express the view that the law subject to the petition should be overturned, but even if the signer is uncertain about how he would vote on the merits of the underlying law, his signatures still expresses the political view that the question should be considered by the whole electorate.
In either case the expression of a political view implicates a First Amendment right.
The state therefore must justify the disclosure requirement by showing that it is substantially related to a sufficiently important government interest.
As we have said in our precedents the strength of the government interest must reflect the seriousness of the actual burden on First Amendment rights.
The state argues that its interest in preserving the integrity of its electoral process justifies the burdens imposed by compelled disclosure under the Public Records Act.
The plaintiffs argue that disclosure is not necessary to serve that interest because state law already provides a number of measures that will serve to protect the integrity of the electoral process, but we agree with the state public disclosure helps promote the state's interest in ways other existing measures do not.
Now the plaintiffs' more significant objection is that even if the state's interest in election integrity is important, the strength of that governmental interest does not commensurate with the seriousness of the actual burden imposed on their First Amendment rights.
According to the plaintiffs, the objective of those seeking disclosure of the R-71 petition is not to prevent fraud and preserve the integrity of the electoral process, but to publicly identify those who had validly signed the petition to broadcast the signer's political views on the subject of the petition.
The plaintiffs allege for example that certain groups plan to post a petitions in searchable form on the Internet and then encourage other citizens to seek out the R-71 signers.
Once on the Internet plaintiffs fear that their names and addresses will be combined with publicly available phone numbers and maps, in what will turn out to be a blueprint for harassment and intimidation.
Now in related context we have recognized that those resisting disclosure can prevail under the First Amendment if they can show a reasonable probability that the compelled disclosure of personal information will subject them to threats, harassment or reprisals from either government officials or private parties.
The question before us however is not whether disclosure violates the First Amendment with respect to those who signed the R-71 petition in particular or other controversial petitions.
The question instead is whether such disclosure in general violates the First Amendment rights of those who signed referendum petitions.
Remember that we are considering only the plaintiffs first argument the one that applies to all petitions and not their second argument which is about their particular petition.
The problem for the plaintiffs is that their general argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R-71 petition or on similarly controversial ones.
The typical referendum petitions involved much more mundane issues, issues like tax policy, general revenue measures or land-use regulations.
Now voters of course care about those issues, some passionately but there's no reason to assume that any burdens imposed by disclosure of such typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.
Faced with the state's unrebutted arguments that only modest burdens attend the disclosure of the typical petition, we must reject plaintiffs brought challenge to the disclosure.
In doing so we notice we have in other election disclosure cases that upholding the law against a broad-based challenge does not foreclose a litigant's success in a narrow one.
The Secretary of State has acknowledged that plaintiffs may press there never were challenge with respect to the release of R-71 signatory information in proceedings that are currently pending before the District Court.
The judgment of the Court of Appeals for the Ninth Circuit is affirmed.
Eight members of the court agreed with that judgment.
Justices Kennedy, Ginsburg, Breyer, Alito and Sotomayor join the opinion I've just described.
Justices Breyer and Alito have also filed concurring opinions.
Justice Sotomayor has also filed a concurring opinion in which Justices Stevens and Ginsburg join.
Justice Stevens has filed an opinion concurring in part and concurring in the judgment in which Justice Breyer joins.
Justice Scalia has filed an opinion concurring in the judgment and Justice Thomas has filed a dissenting opinion.