Supreme Court Rules for Petition Disclosure

In a Thursday decision, the U.S. Supreme Court ruled in favor of disclosing the names of petitioners who called for a ballot measure that could have repealed an expanded domestic partnership rights law in Washington State last year.

The 8-1 ruling, considered in the heated context of the nationwide marriage equality debate, could hold far-reaching implications for public disclosure, including the right to know who contributes to political campaigns against gay rights, and how much they spend.

The case, Doe v. Reed, centered on Referendum 71, a ballot initiative that asked voters whether they wanted to approve or reject a 2009 “everything but marriage law” for same-sex couples. Washington voters affirmed the law by a margin of 53% to 47% in November, but the question of whether to release the names and addresses of petitioners who called for the referendum became the subject of a protracted legal battle.

At issue for the high court was whether petition signers’ private information should be protected under the First Amendment as an expression of political speech. During oral arguments in April plaintiffs sought to portray public disclosure as having a chilling effect on free speech, appealing to isolated reports of vandalism and harassment following the passage of the anti-gay-marriage measure Proposition 8 in California. Washington attorney general Rob McKenna argued that signing a petition qualified as a legislative act, which is not entitled to anonymity, and that the public interest warranted disclosure. Retaliation against petition signers were highly infrequent, he argued.

Writing for the majority, Chief Justice John G. Roberts ruled that plaintiffs’ arguments about potential harm were ancillary to the fundamental question before the court of whether such disclosure violates the First Amendment. "Faced with the State’s unrebutted arguments that only modest burdens attend the disclosure of a typical petition, plaintiffs’ broad challenge to the [Washington Public Records Act] must be rejected."

Roberts further noted the civic benefits of such disclosure, writing that it "helps prevent difficult-to-detect fraud such as outright forgery and 'bait and switch' fraud, in which an individual signs the petition based on a misrepresentation of the underlying issue."

Justice Clarence Thomas was the sole dissenting justice in the case