Supremes Rule on Petition Privacy

Washington is one of the 25 states that permits citizens to use a referendum to veto an act of the legislature.

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From the July 1, 2010 issue of Ballot Access News:

On June 24, the U. S. Supreme Court said that states are free to release the names and addresses of people who sign petitions, unless there is reason to believe that if the information is released, the signers will be harmed. Doe v. Reed, 09-559. The case is from Washington state.

The plantiffs signed a controversial referendum petition, and they don't wish to have their names and addresses made public. They sued to stop the state from releasing the information.

The referendum petition would have had the effect of suspending a 2009 law that set up procedures for same-sex couples to be treated by the state as though they were married.

The decision says that there is a state interest in releasing the data, because even though elections officials check petitions in Washington, they might make mistakes, and public exposition of the names might lead to the discovery of such mistakes in the petition-checking process. But, the decision says that if petition signers can show that they might be harassed, then they should file a new lawsuit and can stop the release of the information. In this particular case, the U. S. District Court will now hold a trial to see if the plaintiffs qualify for privacy.

Justice Antonin Scalia wrote separately to say that the U. S. Constitution does not protect the secret ballot. None of the other justices expressed any opinion about that.

The decision may help other lawsuits that concern ballot access. [Chief Justice John] Roberts wrote that signing a petition to put something on the ballot is expressive activity. "Expressive activity" means that the activity is protected by the Free Speech part of the First Amendment. By contrast, a 1992 U. S. Supreme Court decision, Burdick v. Takushi, said that voting and (by implication) signing a petition are not expressive activity.

That language in Burdick v. Takushi has made it difficult to win ballot access lawsuits. Law Professor Rick Hasen, an election law expert, wrote on his... Election Law Blog that Doe v. Reed silently overrules Burdick v. Takushi on that point.