WASHINGTON, D.C. - (Mealey's) In general, disclosing referendum petitions does not violate the First Amendment to the U.S. Constitution, a divided U.S. Supreme Court ruled June 24 (John Doe #1, et al. v. Sam Reed, et al., No. 09-559, U.S. Sup.).
"Plaintiffs contend that disclosure is not sufficiently related to the interest of protecting the integrity of the electoral process to withstand First Amendment scrutiny. They argue that disclosure is not necessary because the secretary of state is already charged with verifying and canvassing the names on a petition, a measure's advocates and opponents can observe that process, any citizen can challenge the secretary's actions in court, and criminal penalties reduce the danger of fraud in the petition process. But the secretary's verification and canvassing will not catch all the invalid signatures, and public disclosure can help cure the inadequacies of the secretary's process. Disclosure also helps prevent difficult-to-detect fraud such as outright forgery and 'bait and switch' fraud, in which an individual signs the petition based on misrepresentation of the underlying issue. And disclosure promotes transparency and accountability in the electoral process to an extent other measures cannot," Chief Justice John G. Roberts wrote for the majority.
Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Samuel Anthony Alito Jr. and Sonia Sotomayor joined in the opinion. Justices Breyer, Alito and Sotomayor filed concurring opinions. Justice John Paul Stevens and Justice Ginsburg joined in Justice Sotomayor's concurring opinion. Justice Stevens filed an opinion concurring in part and concurring in the judgment. Justice Breyer joined in that opinion. Justice Antonin Scalia filed an opinion concurring in the judgment.
Dissenting, Justice Clarence Thomas opined that "Washington's decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process."
Washington State Senate Bill 5688, designed to expand the rights of state-registered same-sex partners to be equivalent to those of married couples, was passed by the Senate in March 2009 after various amendments and the House of Representatives in April 2009.
In May 2009, Washington resident Larry Stickney notified Washington Secretary of State Sam Reed that he intended to circulate a referendum petition related to SB 5688. Within less than two weeks, Protect Marriage Washington was created with the purpose of circulating the petition and encouraging voters to reject SB 5688.
The petition was submitted July 25, and three days later Protect Marriage Washington and two John Does sued Reed and the state's public records officer in the U.S. District Court for the Western District of Washington, seeking to bar disclosure of the names on the petition. When the trial court granted a preliminary injunction, Reed appealed to the Ninth Circuit U.S. Court of Appeals. The appellate panel issued a three-paragraph order on Oct. 15 staying the trial court order. Protect Marriage Washington and the John Does took the matter to the high court, arguing that requiring public release of the names of the signers would violate the First Amendment.
[Editor's Note: Full coverage will be in the June issue of Mealey's Litigation Report: Data and Identity Security. In the meantime, the opinion is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Document #74-100625-017Z. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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