*1 SECRETARY OF REED, DOE WASHINGTON et al. v. STATE, et al. Argued April No. 09-559. 2010 Decided June *3 J., opinion Court, C. delivered the in which Roberts, Kennedy, JJ., joined. Breyer, J., Ginsburg, Breyer, Alito, and Sotomayor, post, p. J., post, p. concurring opinions. and filed Alito, Soto- mayor, J., a concurring opinion, filed which and Ginsburg, Stevens JJ., joined, post, p. J., opinion 212. filed an concurring part Stevens, concurring judgment, J., joined, in the post, p. which 215. Breyer, J., opinion concurring judgment, filed an in the Scalia, post, p. 219. Thomas, J., dissenting opinion, post, p. filed a 228. Bopp, argued petitioners. Jr.,
James the cause for With him on the briefs were Richard E. Coleson and Sarah E. Troupis. Attorney Washington,
Robert M. McKenna, General of ar gued respondents. the cause for With him on the brief for respondent Sam Reed were Hart, Maureen Solicitor General, Berggren Egeler, William Collins and Anne Elizabeth Deputy Solicitors General. Leslie R. Weatherhead filed a respondent Washington Open brief for Coalition for Gov ernment. Kevin Hamilton, J. P. Gellert, Nicholas respondent Washington Amanda J. Beane filed a brief for Standing Together.* Families
*Briefs of urging amici curiae reversal were filed for the Alliance De- by Mattox; Casey fense Fund for the American Center for Law and Justice Sekulow, by Jay Roth, Colby Alan Stuart J. May, M. James M. Hender- son, Hernandez; Tuskey, John P. and Laura B. for the American Civil Ferrara; Rights by Union Peter Competitive for the Center for Polities *4 Stephen Hoersting; M. for the Center for Jurisprudence by Constitutional IIP, Anthony T. Caso and Edwin Meese for the Committee for Truth in by et al. Abegg Politics Heidi K. Dye; and Alan P. for Common Sense for Oregon by Mannix; et al. Day Ross A. and Kevin L. for Concerned Women by for America Blakeney Goodman; Sharon F. Cassidy and Kathleen for Privacy the Electronic by Information Center et al. Rotenberg; Marc for Speech Fund, the Free Inc., Defense and by Education et al. Herbert W. Titus, Olson, Miles, J. Weinberg, Gary William John S. Mark B. and G. Kreep; for by Mellor, the Institute for Simp- Justice William H. Steven M. son, Frommer; and P. by Robert for the Justice and Freedom Fund James Dewart; L. Hirsen Liberty by and Deborah J. for Counsel D. Mathew Staver, Staver, Anita L. Stephen Mary McAlister; M. Crampton, and E. for ProteetMarriage.eom-Yes Project on A of Renewal, by California of opinion Justice Roberts delivered
Chief Court. challenge its citizens to of State allows by Roughly percent four of Wash-
state laws referendum. place ington sign petition voters must such referendum by petition, on the That law must include the ballot. which Panuccio; Cooper J. and Jesse Charles M. and for More Voters Want Timothy Stuart Gerson and Shawn Newman. by Choices Briefs of amici curiae urging affirmance filed for the of Ohio were State Mizer, Cordray, Attorney Ohio, Benjamin Richard C. by al. et General of Long, Deputy A. Pe- Solicitor, Elisabeth and Samuel General, Solicitor terson, General, by Attorneys Assistant Solicitor and General for their Terry Arizona, Goddard John W. Suthers respective States as follows: of Bill McCollum of Lawrence G. Lisa Colorado, Florida, Idaho, of Wasden of Madigan Illinois, Douglas Janet T. Mills of F. Gansler of Maine, of Coakley Massachusetts, Martha Maryland, Jim Hood of Mississippi, of Delaney Steve Bullock of Michael A. Montana, Paula Hampshire, of New Jersey, Gary King T.Dow of K. Wayne Stenehjem Mexico, New of New of Kroger A. Drew R. Dakota, Oklahoma, W. Edmondson John North of of Oregon, Henry Carolina, Marty Jackley McMaster J. South of South Jr., Cooper, E. Dakota, Robert Mark L. Tennessee, Utah, Shurtleff H. William Sorrell and J. B. Vermont, Van Hollen Wisconsin; for Christopher A. R. by American al. Mohr Michael Business Media et and Sandler; Klipper; Joseph E. by for Daniel A. al. Smith et for the Lambda Legal Fund, Inc., Hohengar- William M. by Defense and Education et al. ten, Buseck, Davidson, Gary Mary Bonauto, Sommer, D. L. Jon W. Susan Minter, Stoll; Christopher Shannon F. and for Washing- the National and Johnson, Bruce E. H. A. Richard by ton State Publishers et al. News Bernstein, Cohen, Goldberg, Tofel, Kevin M. Dale M. Richard J. Karlene Goller, Lieberman; N. W. and Eric for the National Conference of State Ruda, Rothfeld, Richard Charles A Andrew J. Pin- Legislatures by et al. cus, Shuchart; and Scott L. Gay for the Massachusetts and Lesbian Jonathan M. Albano. by Political Caucus et al. Briefs of amici curiae for the Brennan Center were filed for Justice Youn; Chatillon, Johnson, M. Devereux Mark P. Monica by al. et Willard, Hilton, Ilya Shapiro; Glenn M. John C. by
the Cato Institute Schochet; Peter S. Holmes and John B. City for the of Seattle and for by Lucy A. Reporters Committee for Freedom of the Press et al. Leslie, Dalglish, Gregg Rush, Milam, P. F. Tonda René P. San- Bruce W. Brown, ford, Bruce D. A and Laurie Babinski. *5 the signers, then submitted the is of and addresses
names canvassing, to ensure government and for verification Washington Public signatures The only are counted. lawful (PRA) cop- parties private to obtain authorizes Act Records the government the construes and State documents, ies of petitions. referendum to cover submitted PRA extending certain bene- of a state law arises out This case pe- corresponding couples, referendum a to same-sex fits Respondent popular inter- put to a vote. that law tition petition, copies the with of the PRA to obtain venors invoked petition signers. the Certain and addresses of the names objected, arguing sponsor signers petition that such the rights the First their under would violate disclosure Amendment. legal litigation, has framed the however,
The course of this stage broadly. question The issue this us more before particular petition this the case is not whether disclosure whether disclosure Amendment, the First but would violate general petitions con- would do so. We referendum general a matter vio- does not as clude that such disclosure judg- we therefore affirm Amendment, the First late Appeals. leave it to lower We ment of Court signers’ fo- more in the first instance courts to consider concerning on this of the information cused claim pending particular petition, the District before which Court.
I people Washington to the reserves Constitution exceptions reject any power a few limited with bill, process. through Wash. here, not relevant 1(b). proponents § referendum, To initiate II, Art. Const., secretary contains of state that file a with must equal registered to or signatures voters valid percent the officeof exceeding cast for Gov- of the votes four (d). 1(b), §§ A gubernatorial election. ernor at the last signature, only requires but also not valid submission *6 signer’s county registered the he address and which (2008). §29A.72.130 vote. Rev. Wash. Code Washington May Gregoire 2009, In Governor Christine signed “expanded] Bill into law Senate which the 5688, rights responsibilities” state-registered and of domestic partners, including partners. same-sex domestic 586 F. 3d (CA9 2009). Marriage That 671, month, same Protect Washington, petitioners organized one of the here, was as purpose a “State Political for the of Committee” collect- ing petition signatures necessary place the a referen- give dum on the ballot, which would the voters themselves opportunity App. an to vote on SB 5688. 8-9. If the refer- Marriage Washing- endum made it onto ballot, Protect planned encourage reject ton voters to 5688. Id., SB at 7, 9. July Marriage Washington 25,
On 2009,Protect submitted secretary petition containing to the of state a 137,000 over signatures. Respondent 3d, 675; See 586 F. at Brief for Washington Standing Together secretary Families 6. The began canvassing process, state then the verification and required by Washington only as legal to ensure law, signatures §29A.72.230. were counted. Wash. Rev. Code signatures required place Some 120,000valid were Washington referendum on the ballot. Reed, Sam Secre- tary 2009). (Sept. State, Certification of Referendum 71 2, secretary petition of state determined that con- signatures, a tained sufficient number valid and refer- (R-71) appeared endum on the November 2009 ballot. The approved margin percent voters SB 5688 of 53 to 47 percent. § (2008), seq.
The PRA, Wash. Code Rev. 42.56.001et makes “public public inspection all copy- records” available for and §42.56.070(1). ing. “[pjublic The Act defines record” as “any writing containing relating information to the conduct government performance any- governmental or proprietary prepared, or owned, function or used, retained §42.56.010(2). by any agency.” Washington state local petitions “public position are rec- that referendum takes the Respondent 5. Reed Brief for ords.” requests secretary August By received had copies from an individual four for of the R-71 Open including Washington Govern- Coalition entities, (WCOG) Standing Together Families ment (WFST), respondents 3d, F. here. 586 675. two of KnowThyNeighbor.org, WhoSigned.org is- entities, Two stating post joint press their release intention.to sued *7 petition signers in a online, the R-71 searchable names of App. at 3d, 586 F. 675. 11; format. See signers petition sponsor and certain filed The referendum injunction preliminary complaint the a for a and motion the District District of United States Court Western seeking secretary Washington, enjoin the of state from to releasing publicly reveal that would the documents petition signers. the contact R-71 names and information “[t]he complaint alleges App. I of that Public 4. Count the applied pe- as to referendum Records Act is unconstitutional alleges complaint II that Id., at 16. titions.” Count applied to Act unconstitutional as “the Public Records is proba- petition there 71 is a reasonable Referendum because bility signatories 71 that the of the will Referendum reprisals.” subjected harassment, Id., threats, be political Determining core at that the PRA burdened 17. plaintiffs likely speech, that were held the District Court prelimi- granted I and them succeed on merits Count enjoining nary injunction of the infor- release count, on that Supp. petition. 1194, 1205-1206 661 F. 2d on the mation 2009). (WD Wash. Appeals Circuit for the Ninth
The United States Court complaint, only Reviewing I of the Count reversed. unlikely plaintiffs to succeed Appeals were Court of held applied to as is unconstitutional that the PRA on their claim petitions generally. reversed the It therefore injunction. preliminary grant 586 District Court’s (2010). granted S. certiorari. 558 U. at 681. 3d, F. We II important scope at It is the outset to of the define challenge complaint before As I noted, us. Count of con- ap- tends that the PRA “violates First as Amendment plied petitions.” App. to referendum 16. Count II asserts applied that the PRA “is unconstitutional as to the Referen- petition.” Id., dum The 17. District Court decision solely Appeals was based on I; Count the Court of decision reversing similarly the District Court was limited. 586 3d, F. at 676, n. 6. Neither court addressed Count II. parties disagree properly
The about whether I Count as-applied challenge. Compare Reply viewed as a facial or (“Count expressly Brief for Petitioners 8 I made an as- (“This applied challenge”) Respondent with Brief for Reed Act”). challenge Washington’s is a facial Public Records obviously It ap- has characteristics of both: claim is “as plied” in the that it sense not does seek to strike the PRA applications, only in all its but to the extent it covers referen- petitions. dum The claim is “facial” in it is not limited plaintiffs’ particular challenges application but case, broadly petitions. law more to all referendum *8 important The label is point not what matters. The is plaintiffs’ that claim and the relief that would follow—an in- junction barring secretary making the of state “from refer- petitions public,” App. endum (Complaint available to the 16 I) beyond particular Count the circumstances of —reach plaintiffs. They satisfy these must therefore our standards challenge for a facial to the extent of that reach. See United (2010). States v. Stevens, 559 U. S. 460, 472-473 III A compelled signatory disclosure of information on ref- petitions subject erendum is to review under the First expresses political An Amendment. individual a view on a signs petition Washington’s matter when he a under referen- procedure. signature dum In the cases, most individual’s express subject petition will the that view the law to the signer agnostic should be overturned. Even if the is as to underlying signature expresses the merits of the law, his still political question “by view that the be should considered Meyer Grant, whole electorate.” v. U. S. (1988). expression political In either case, the of a im- view plicates right. having a First The State, Amendment “cho- tap energy legitimizing [sen] power and the of the process,. participants democratic . . must accord that process rights the First Amendment that attach to their Republican Party roles.” Minn. White, v. 536 U. S. (2002)(internal omitted). quotation ellipsis marks and Respondents signing legally counter that a ais operative legislative act therefore “does not involve significant expressive Respondent element.” Brief for Reed signing petition may It true 31. that ulti- referendum mately legal consequence secretary requiring have place of state to on the ballot. But we do adding legal expressive activity not see how such effect to an deprives activity expressive component, somehow of its taking scope it outside the of the First Re- Amendment. spondents recognize implicitly signature themselves that the expresses particular viewpoint, arguing purpose that one engage signers served disclosure is to allow underlying g., in a on the debate merits law. e. See, Respondent Respond- id., at Brief for Brief for 45; 49; WCOG ent 58. WFST legal signing expressive
Petition remains even when it has process. say effect in the electoral But that is not to irrelevant to the nature of our First the electoral context is significant flexibility Amendment allow review. We States implementing voting systems. Burdick v. their own *9 (1992). reg- 504 433-434 To the extent Takushi, 428, U. S. activity particular legal ulation concerns the effect of a process, government lat- substantial will be afforded 196 regulation. pertinent to enforce that Also to our anal
itude ysis prohibition speech, is the fact that the PRA is not a on requirement. “[Disclosure but instead disclosure re quirements may ability speak, burden but . . . prevent anyone speaking.” do not from Citizens v. United (2010)( Federal Election Comm’n, 558 U. 366 310, S. te rn in precedents considering have a
We series of First Amend- challenges requirements ment to disclosure in the electoral precedents challenges context. These have such reviewed scrutiny.” “exacting g., under what has been termed See, e. (1976) Buckley curiam) (“Since (per Valeo, v. 424 1, U. 64 S. (1958),] [ex NAACP v. Alabama rel. Patterson, U. S. 449 required subordinating we have that the interests of the [offered justify compelled disclosure] State survive exact- (“The ing scrutiny”); supra, Citizens United, at 366 Court subjected [disclosure] requirements ‘exacting has scru- tiny’” (quoting Buckley, 64)); supra, at Davis v. Federal (2008) (governmental Election Comm’n, 554 U. S. 724, exacting scrutiny’” interest disclosure “‘must survive (quoting Buckley, supra, 64));Buckley at v. American Con- (1999) stitutional Law Foundation, Inc., 525 U. 182, S. (ACLF) (finding “fail[ed] exacting that disclosure rules scru- (internal tiny” omitted)). quotation marks “requires That standard a ‘substantial relation’ between requirement ‘sufficiently important’ gov- and a supra, ernmental interest.” United, Citizens at 366-367 66). (quoting Buckley, supra, at To withstand this scru- tiny, strength governmental “the interest must reflect the seriousness of the actual burden on First Amendment rights.” supra, (citing Buckley, supra, Davis, at 744 at 71).1
1Justice Scalia petition doubts whether signing is entitled to Post, protection First Amendment at all. (opinion concurring in judgment). skepticism His is based on the view signing has “legal legislative process, effects” aspects while political other
B Respondents justify two assert interests to burdens of compelled under the PRA on First Amendment (1) rights: preserving integrity process of the electoral by combating detecting signatures, fraud, invalid and fos- tering government transparency accountability; and and (2) providing sup- information to the electorate about who petition. g., Respondent ports the See, e. Brief for Reed 39- 42, we 44-45. Because determine that State’s interest preserving integrity process in the electoral suffices argument defeat the that to the PRA is unconstitutional with respect petitions general, to in we need and not, not, do address the “informational” State’s interest. preserving integrity
The State’s interest of the elec process undoubtedly important. allowing toral is “States leeway protect ballot initiatives have considerable to integrity reliability process, of the initiative as respect processes generally.” have with election ACLF, supra, particularly strong at 191. The State’s interest is respect only may to root fraud, with efforts out which not produce systemic fraudulent but outcomes, has a effect as process It well: “drives honest citizens out of the democratic government.” and breeds distrust our Purcell v. Gonza (2006) (per curiam)-, lez, 4 U. S. also see v. Crawford (2008) County (opin Bd., 181, 196 Marion Election 553 U. S. J.). ion threat of fraud this context Stevens, participation respect which we have there is a First held Amend- —with interest, at supra, post, 221-222, ment see 194-196 —do not. at See it; sharp n. 3. That line is not as Justice would have him- as Scalia he recognizes voting,” “the of a First interest self existence Amendment effect. post, legal which of course also can have The distinction only given petition signing legal even fuzzier some has becomes ef- fect, only legal expressive such attaches well after the act effect secretary signing, if the satisfies the re- determines post, on the ballot. at 221. Petitions that quirements inclusion carry legal effect. qualify not for the of course no do ballot merely hypothetical; respondents not and their amici cite a petition-related country number of cases of fraud across the support point. Respondent See Brief for Reed 43; Brief for State Ohio et al. as Amici Curiae 22-24. *11 preserving
But integrity the State’s in interest electoral combating is not limited to fraud. That interest extends signatures efforts to ferret out invalid caused not fraud by simple duplicate signatures signa- but mistake, such as registered tures of individuals who are not to vote in the Respondent Brief State. See for Reed 42. That interest generally promoting transparency also extends more and accountability process, in the electoral which the State ar- gues proper functioning democracy.” is “essential to the of a Id., at 39. requirements
Plaintiffs contend that the disclosure of the “sufficiently are protect- PRA not related” to the of interest ing integrity process. the of the electoral Brief for Petition- They argue necessary ers 51. that disclosure is not because secretary already charged verifying of state is with and canvassing petition, opponents names on a advocates and process, of a measure can observe that and citizen can challenge secretary’s actions in court. See Wash. Rev. They §§29A.72.230, Code 29A.72.240. also stress that exist- ing penalties danger criminal peti- reduce the of in the fraud process. tion See Brief for Petitioners 50; §§29A.84.210, 29A.84.230,29A.84.250. secretary’s canvassing
But the verification and will not (the signatures: job large catch all invalid The is and difficult secretary ordinarily “only signatures,” checks 3 to of 5% 54), Respondent secretary Brief for WFST and the can make Respondent see Brief mistakes, too, for Reed 42. Public dis- help inadequacies closure can cure the of the verification and canvassing process. helps prevent types petition
Disclosure also certain outright forgery fraud otherwise difficult to detect, such as signs and fraud, “bait and switch” which an individual underlying misrepresentation petition aon based Respondent 9-11, cf. 53-54; Brief for WFST issue. See Gay Political Caucus and Lesbian Brief Massachusetts (detailing and switch” “bait 18-22 et al. as Amici Curiae Massachusetts). signer is in in a drive fraud public types position and fraud, these to detect the best signer’s bring attention. to the the issue disclosure can only signa- helps that the thus ensure Public disclosure only be, that should counted are those tures garner enough placed are those that on the ballot referenda transpar- promotes signatures. disclosure also Public valid process accountability ency to an extent in the electoral reject light foregoing, In we cannot. other measures argument plaintiffs’ disclosure of conclude that substantially petitions general related to integrity preserving important the elec- interest process.2 toral
C strength objection significant Plaintiffs’ “the is that more governmental the serious- not “reflect the interest” does rights.” First Amendment the actual burden on ness of 71); Buckley, (citing 68, at S., 424 U. at 744 Davis, S., 554 U. According plain- g., to 12-13, 30. e. Brief for Petitioners see, seeking objective of the R-71 disclosure of those tiffs, identify publicly prevent those petition but to fraud, not to is signers’ political validly signed to broadcast who had allege, petition. subject Plaintiffs for on the of the views post petitions groups plan example, several that encourage other then Internet, on the form searchable App. signers. Brief for 11; out the R-71 citizens to seek 46-47. Petitioners relationship between contrary assessment Justice Thomas’s interests generally and the State’s petitions
disclosure of referendum scrutiny applies, post, that strict determination is based on his this ease that of review we rather than the standard (dissenting opinion), at 232 at 196. supra, see appropriate, is have concluded explain that Internet, Plaintiffs once on the signers’ publicly “can be combined with names.and addresses phone maps,” effectively available numbers and in what will blueprint for Id., become harassment and intimidation. subject support they at To will 46. their claim be reprisals, plaintiffs examples history cite from the a simi- g., proposition id., lar e. California, see, 2-6, 31-32, and experience petition sponsors from the one of in this App. case, see 9. explained resisting
In contexts, related we have that those prevail they can disclosure under First Amendment if probability compelled can “a show reasonable that the disclo- personal subject [of information] sure will them threats, reprisals harassment, or either from Government officialsor parties.” private Buckley, supra, at see 74; also Citizens question United, 558 U. atS., 367. The before us, however, is not whether PRA disclosure violates the First Amend- respect signed petition, ment with who those the R-71 particularly petitions. question or other controversial The general is instead whether such disclosure in violates the rights sign First Amendment of those who referendum petitions. plaintiffs problem argument their al- rests entirely specific say
most on the harm would attend petition, the information on R-71 onor simi- larly g., See, controversial ones. e. Brief for Petitioners typical petitions 46, 56. But 26-29, “concern policy, budget, tax revenue, or other state law issues.” Respondent (listing referenda); Brief for *13 36 WFST see also App. (stating years 26 that in recent the State has received requests petitions supporting concerning PRA for initiatives limiting charges; government regulation motor vehicle private property; energy by use resource certain electric long-term elderly persons care utilities; services for the and county, city revenue); with disabilities; state, id., at (stating years, past in 26-27 referendum meas- concerned qualified in the for the ballot State that have ures regulation; unemployment charter insurance; land-use benefits). coverage care Voters and insurance schools; quite deeply there no reason some issues, about such —but typical imposed disclosure burdens to assume remotely petitions like burdens would be plaintiffs case. fear this They pro- response.
Plaintiffs little in have have offered beyond argument or burdens vided us scant evidence impose petition signers they disclosure would on R-71 assert similarly petitions. signers In- controversial of other or respect typical plaintiffs little do offer with deed, what helps: peti- petitions other hurts, not Several subject in recent in the been to release tions State “have appar- years,” plaintiffs Petitioners but us, tell Brief for ently that release come without incident. Cf. Citizens has (“Citizens disclosing supra, at 370 United has been United, years no instance of harass- its and has identified donors retaliation”). ment or only arguments that unrebutted
Faced with State’s typical petition, of a attend the disclosure modest burdens challenge reject plaintiffs’ In PRA. we must broad doing in other election law disclo- so, we note—as we have upholding against a broad-based cases—that law sure litigant’s challenge foreclose a success a narrower does not (“minor may Buckley, parties” supra, be at 74 one. See exempt requirements can if show from disclosure compelled probability of a that the “a reasonable subject party’s threats, them to har- names will contributors’ pri- reprisals or either officials or from Government assment, (disclosure supra, parties”); United, Citizens vate organization applied if to an unconstitutional as “would be group’s probability mem- that the a reasonable there were reprisals if their harassment, threats, would face bers (citing Election v. Federal McConnell names were disclosed” (2003))). secretary of state Comm’n, 540 U. S. *14 acknowledges plaintiffs may press the narrower chal- lenge complaint proceedings pending II of their in Count Respondent before the District Court. Brief Reed 17. [*] [*] [*] We conclude that disclosure under PRA would not vio- respect peti- late the First Amendment with to referendum general judgment tions in and therefore affirm the Appeals. Court of
It is so ordered. Justice Breyer, concurring. significantly
In impli- circumstances where, as “a law here, competing constitutionally protected cates interests in com- plex ways,” the Court balances interests. Nixon v. Shrink (2000) Missouri PAC, Government 528 U. S. concurring). practice “And in that has meant (Breyer, J., asking whether the statute burdens one such interest in proportion salutary manner out to the statute’s effects upon opinions, the others.” Ibid. As I read their this is what both Court and Justice do. ante, Stevens (opinion Court); post, at 196 of at 217-218 (Stevens, J., concurring part concurring judgment). And for the (as opinions many reasons stated in those well as of the rea- uphold sons discussed I would Justice Sotomayor), challenged statute understanding, in this case. this With I join opinion opinion. of the Court and Justice Stevens’
Justice Alito, concurring. Washing- Court holds that the disclosure under the (PRA), §42.56.001 ton Public Records Act Rev. Wash. Code (2008), seq. persons sign et of the names and addresses of who petitions general referendum not does as a matter violate page, agree the First ante Amendment, this and I with that Many petitions relatively conclusion. concern plaintiffs matters, ante, uncontroversial see 200-201, *15 signatory provided to no think that disclosure have reason significantly chill the would in those contexts information challenge sign. willingness facial Plaintiffs’ of voters ante, at 194. 191, must fail. therefore requirements facially can im disclosure Nonetheless, valid rights heavy pose in individual on First Amendment burdens long reality, Acknowledging that have held that we cases. exemptions speakers as-applied from disclosure can obtain probability requirements they “a if can show reasonable information] compelled [personal will sub the disclosure reprisals ject either from threats, harassment, them to private parties.” Buckley Valeo, v. officials or Government (1976) curiam); (per United 1, 424 74 see also Citizens U. S. (2010); 558 367 Mc Comm’n, 310, v. Election U. S. Federal Comm’n, 93, v. 540 U. 197-198 Connell Federal Election S. (2003); Campaign Comm. Brown v. Socialist Workers ’74 (1982). (Ohio), compelled Because disclo U. S. ability speak,” United, sure can the Citizens “burden supra, “seriously infringe privacy at on of associa 366, and guaranteed by Amendment,” the First Buck tion and belief exemption plays ley, supra, as-applied a critical the safeguarding rights. First Amendment role
I pro- as-applied challenge prevailing possibility in an The only rights adequate protection for First Amendment vides (1) sufficiently exemption speakers far in if can obtain the (2) chilling protected speech show- to avoid advance overly ing necessary exemption burden- is not to obtain as-applied respect requirement, the to the first some. With speakers exemption practically cannot if worthless becomes speak- quickly exemption advance of well obtain requirement ing. possibility that a disclosure To avoid sign willingness a referendum might of voters chill the (and ability to collect the petition circulator’s thus burden Meyer signatures, necessary Grant, U. S. v. number of cf. (1988)), must have at the 414, 423 voters some assurance time presented are when with the that their names identifying public. information will not be released to way only provide a circulator can such assurance, how sought is if the circulator an ever, has and obtained as- applied exemption requirement from well circulating petition. before the best Otherwise, exemption circulator could do would be to tell voters an might point specu be obtained at in the some future. Such lation would often be insufficient alleviate voters’ concerns possibility being subjected about the to threats, harass reprisals. supra, ment, or United, Cf. Citizens at 484-485 *16 concurring part part). dissenting J., in (Thomas, Additionally, speakers as-applied must be able to obtain an exemption clearing high evidentiary without a hurdle. We acknowledged Buckley, as much where we that noted “un- duly requirements proof impose heavy strict of could a bur- speech. Recognizing speak- den” S., on 424 U. at 74. that flexibility proof ers be “must allowed sufficient in the of injury assure a fair of consideration their claim,” we em- phasized speakers only proba- that “need show a reasonable bility” that will lead to threats, or harassment, Ibid, added). reprisals. (emphasis speakers We stated that rely array could on a of wide evidence to meet that standard, including “specific past present evidence or harassment of [group] against organi- members,” “harassment directed “pattern specific itself,” zation or a of threats or manifesta- public hostility.” Significantly, tions of Ibid. also we made “[n]ew [groups] history upon clear that that no have which may reprisals to draw be able offer evidence and threats against organizations holding or directed individuals similar inception, as-applied Ibid. views.” From its therefore, imposed exemption proof has not onerous burdens of on speakers might who fear that disclosure lead to harassment or intimidation.
205 II. light principles, plaintiffs in this case have In of those strong argument Amend- that PRA violates First applied petition. to the Referendum 71 ment as
A plaintiffs’ first the burdens on First Amendment Consider rights. widespread intimidation suf- harassment and provides supporters Proposition fered California’s strong support as-applied exemption present for an in the Buckley, supra, (explaining speakers at 74 case. See seeking requirement as-applied can relief from disclosure rely reprisals against on “evidence of threats directed views”). organizations holding Propo- individuals or similar provide sition amended California Constitution to “[o]nly marriage a man and a between woman valid § recognized plain- Art. California,” Const., I, 7.5, Cal. tiffs submitted to the District substantial Court evidence by Proposition supporters, the harassment suffered see (WD Wash.), Declaration of Scott F. Bieniek in No. C:09-5456 Exhs. 13. of this also noted that Members Court have Hollingsworth Perry, harassment. See v. 558 U. S. (2010) curiam); (per supra, at 481- United, 185-186 Citizens J.). (opinion relating if the Indeed, *17 evidence Thomas, Proposition as-applied 8 is not sufficient to obtain an ex- emption may in case, this one wonder whether vehicle provides any meaningful protection for the First Amend- rights persons sign ment of circulate who petitions. and initiative plaintiffs to the District Court, when return more,
What develop they opportunity of intimi will have the evidence supporters op dation and harassment of Referendum —an portunity pretermitted of the District that was because grant preliminary injunction on count I decision to Court’s Supp. plaintiffs’ complaint. 1194, 1205-1206 661 F. 2d (WD 2009); Arg. example, Tr. of Oral 40-41. For Wash. manager plaintiffs allege campaign that the for one of plaintiff groups threatening phone calls, received e-mails and manager that the were a- threats so severe that filed complaint sleep with local sheriff his in and had children App. an interior room his home. 9-10.
B inadequacy compelling pub- State’s interests signatory lic disclosure of referendum information further generous granting confirms that courts should be as- applied Buckley, supra, relief in this context. See (recognizing that the weakness the State’s in an interests require speakers exempting individual case can from com- (same). pelled disclosure); Brown, 459 U. at 92-93 S., As rely respondents justify Court notes, on interests to two (1) compelled providing this context: informa- supports petition; tion to voters about who a referendum (2) preserving integrity process by of the referendum detecting signatures. fraudulent and mistaken Ante, at 197. my respondents’
In view, asserted informational interest trump will not in case be sufficient First Amend- rights signers ment and circulators who face a threat Respondents publicly disclosing harassment. maintain that signatories provides names and addresses of referendum voting public “insight support with into whether holding predominantly particular a vote comes from interest groups, political religious organizations, group[s] or or other of citizens,” and thus allows voters to draw inferences about support oppose whether should the referendum. Respondent Washington Standing Brief for Families To- gether Respondent see 58; also Brief for Reed 46-48. Addi- tionally, respondents argue Washing- that disclosure “allows engage ton voters to in discussion of referred measures with
207 persons suspension whose acts secured the election and Respondent Id., state at 45; law.” see also Brief for Wash- ington Standing Together Families 58. implications accepting argument are such an
breathtaking. accept respondents’ we to in- Were asserted require peti- formational free to interest, State would be signers demographic tion to disclose all information, kinds of including signer’s religion, political -the race, affiliation, sex- background, interest-group ual ethnic orientation, mem- berships. Requiring disclosures, such however, runs head- century firmly first into a half of our case which law, right privacy establishes individuals have a of belief and association. See Forum v. Academic and Rumsfeld Rights, (2006); Institutional Inc., 547 U. 69 47, Brown, S. supra, Buckley, DeGregory Attorney at 91; atS., 64; U. v. (1966); H., General N. 383 U. 825, S. Gibson v. Florida Legislative Investigation (1963); Comm., 372 539, U. S. Patterson, NAACP v. Alabama ex rel. 357 U. S. (1958). paints Indeed, the State’s informational interest chilling picture government such a of the role of in our lives argument Washington attorney general oral logical implications balked when confronted with the of ac- cepting argument, conceding such an that the State couldnot require petition signers religion ethnicity. their disclose Arg. Tr. of Oral 56.
Respondents’ legitimate informational interest is no more providing when viewed as a means of with infor- supporters mation needed to locate contact of a referen- pursuing dum. In the name of such an interest, State require petition signers would be free to in- disclose easily formation that more would enable members of the vot- ing public engage to contact them discussion, them in including telephone e-mail numbers, addresses, and Internet again, permitting government require aliases. Once speakers against to disclose such information runs the cur- privacy impor- rent of our associational cases. But more *19 speakers probability are faced with a reasonable tant, when longer any the no has intimidation, harassment State enabling public support- interest in to locate and contact particular ers of a in that instance, measure —for disclosure facilitating impermissi- becomes a means of harassment that bly rights. chills the exercise First Amendment groups proposed place
In this two on the Internet case, signed the names and of all addresses those who Referendum alleged express encourage it is that their aim 71, and was Supp. conversation^].” “uncomfortable (internal 661 F. at 1199 2d, omitted). quotation marks If this information is posted anyone on the then Internet, with access to a com- puter compile could a wealth of information all of about those persons, including many following: in all cases of the spouses neighbors, telephone names of their and their num- pictures directions to their bers, of their homes, homes, infor- (such type mation about their homes as size, of construction, purchase price, amount), mortgage and information about any they motor vehicles that court own, case in which parties, any posted were information on a social net- working newspaper site, and articles in which their names appeared (including things wedding such as announcements, papers obituaries, articles local about their children’s activities). potential school and athletic The that such infor- mation could be used for harassment is vast.
Respondents also maintain that the State has an interest preserving integrity process of the referendum public by helping that disclosure furthers that interest signatures. agree State detect fraudulent and mistaken I preserving integrity with the that Court of the referen- process sufficiently important a dum constitutes inter- state Ante, at 197. I est. But harbor serious doubts as to whether
public signatory disclosure of information that inter- serves way always “reflect[s] est in of the seriousness rights.” actual First Davis v. Fed- burden on Amendment (2008). eral Comm’n, Election 554 U. S.
First, the realities law undermine the argument necessary State’s to en process. integrity sure the State of Washington first voter initiatives via constitu authorized following year tional amendment the Wash ington Legislature passed specifying particu statute *20 process. lars of the referendum rel. See State ex Case v. Superior Cty., Thurston 623, 628, 143 Wash. P. 461, Ct.for (1914). Significantly, Washington’s pertaining laws to initiatives and referenda not then not did and do now au public signatory thorize the disclosure of information. See §29A.72.010 seq.; Wash. Rev. Code et 1913 Wash. Laws pp. public requirement Instead, 418-437. the disclosure stems PRA, from the which was enacted in 1972 and which requires public generally, disclosure of state documents specifically. not referendum documents See Wash. Rev. §42.56.001 seq. anything, Washington’s Code et if Indeed, suggest signatory referenda initiative laws that infor mation remain should confidential: observers are Outside permitted secretary to observe of state’s verification and canvassing only process long “so as make no record peti of the names, addresses, or other information on the during process,” tions or related records the verification required destroy §29A.72.230, State is to all those § petitions qualify to that fail for the ballot, 29A.72.200. grips
Second, fails to come to the fact State with public signatory information referendum is a relatively practice Washington. adop- recent Prior to the Washington attorney general tion of the in 1972, PRA petitions subject took the view that were not public Atty. Op. disclosure. See 55-57 274, Wash. Gen. No. 28,1956), pp. (May http://www.atg.wa.gov/AGO 1-2 online at (all Opinions/opinion.aspx?section=topic&id=10488 Internet 2010, materials as June Clerk of visited available file) (declaring public Court’s case disclosure of initiative petitions “contrary public policy” would be and would contrary tendency part legislature run to “a on the regard signing petition of an initiative as a matter concerning only signers except the individual in so far as necessary safeguard against privilege”). abuses secretary represents Indeed, the of state on his siteWeb Secretary that even after the PRA was enacted, “various position, State administrations took the from 1973 to 1998, personal that the information on sheets were NOT subject Zylstra, History to disclosure.” B. The Disclosure 2009), (Sept. http://blogs.sos. of Petition Sheets online wa.gov/FromOurCorner/index.php/2009/09/the-disclosure- history-of-petition-sheets. Although secretary of state apparently changed policy appears this in the late 1990’s,it secretary that the petitions did not release initiative secretary until 2006. Ibid. And to date, the has released only petitions. App. history Ibid.; handful of 26. That substantially undermines the State’s assertion that necessary integrity disclosure is to ensure the of the referen- *21 process. nearly century, dum Washington’s For a referen- process operated apparently dum operated success- —and fully public signatory the information. disclosure of —without explain The State has failed to how circumstances have changed dramatically years so in recent that disclo- required. sure is now experiences
Third, the of other States demonstrate that publicly disclosing identifying the names and information of signatories necessary referendum protect against is not give example, fraud and mistake. To but one California has had more initiatives on the ballot than other State save Oregon. See Initiative and Referendum Institute, Initiative (Feb. p. 2009), http://www.iandrinstitute.org/ Use, online at IRI%20Initiative%20Use%20%281904=2008%29.pdf. None- explicitly protects theless, privacy California law of ini- signatories. tiative and referendum See Cal. Elec. Code (West §6253.5 §18650 2003); Code Ann. Ann. Cal. Govt. 2008). (West entirely possible keep for It a State to is thus private signatory a maintain information and referendum process free from and initiative fraud.
Finally, easily cheaply employ could al- protecting against for ternative mechanisms fraud and mis- protective take would be far more circulators’ and signers’ rights. example, First For Amendment Wash- ington attorney general represented argument to us oral Secretary step receiving that “the after of State’s first sub- petitions archiving mitted is to take them to his section and digitized.” Arg. digi- have them Tr. of 30. With a Oral relatively easy secretary tized it list, should be for the duplicate signatures petition. check for on a referendum given secretary a And that the “centralized, maintains uni- computerized registration form, interactive voter statewide registration list contains the name and information of every registered voter the state,” Wash. Rev. Code Ann. §29A.08.125(1)(West Supp. 2010), secretary could use computer program cross-check the names and addresses on the with names and on the addresses voter registration ensuring accuracy legitimacy rolls, thus signature. each
Additionally, using digitized version petition, system up simple Washing- set State could citizens to whether ton check their names have been fraudu- lently signed petition. example, to a For on his site, Web secretary maintains an interface that allows voters to registration simply by input- confirm their voter information (cid:127) ting http://wei.secstate. their name date of birth. wa.gov/osos/VoterVault/Pages/MyVote.aspx. Presumably *22 secretary up could a similar for set interface petitions. process to Indeed, the would seem be all the simple given Washington requires “unique more a iden- [to] assigned registered to tifier be each voter in the state.” §29A.08.125(4).
[*] [*] [*] challenges play As-applied requirements to disclosure a protecting critical role First Amendment freedoms. To give speech breathing prompt it flourish, room needs to judicial remedies must well the relevant be available before speech proof occurs and the low. In burden must be this through analogy through experi- case—both their own plaintiffs strong they have a case that are entitled to ences— as-applied pursue relief, and will be able to such relief before the District Court.
Justice with 'whom Sotomayor, Justice Stevens Ginsburg Justice join, concurring. separately implicit emphasize point
I write in the opinion concurring opinions of the Court and the of Justice Breyer: and Justice In assess- Stevens, Justice Scalia, ing countervailing interests stake in this case, we must be mindful of the character initiatives and referenda. democracy compelled by These mechanisms of direct are not up people the Federal Constitution. It is instead to the acting sovereign capacity, each State, their to decide permit legislation by popular whether and how to action. enjoy leeway” subjects States “considerable choose eligible placement specify that are for on the ballot (e. requirements obtaining g., ballot access the num- signatures required, ber of the time for submission, and the verification). Buckley method of v. American Constitu- (1999). tional Law Foundation, Inc., 525 U. S. As properly recognizes, the Court each of these structural deci- “inevitably degree sions least to affects—at some indi- —the right” speak political vidual’s about “to issues and associ- political ate with others for Celebrezze, ends.” Anderson v. (1983). requiring petition U. S. For instance, signers registered to be voters or to real use their names no ability willingness doubt limits of some individuals to expressive signing petition. Regula- undertake the act
213 step “a from this stand removed nature, however, tions of ability aspect petitioning,” the of the communicative of and scarcely Buckley, impose them can be doubted. States to (O’Connor, concurring judgment part in in atS., J., 525U. 215 McIntyre dissenting part); Elections see also v. Ohio (1995) (contrasting measures to 514 345 Comm’n, 334, U. S. process” the mechanics of the electoral with “control necessary “regulation pure speech”). It is no means of nondiscriminatory prove “reasonable, for a that such State narrowly Ander- are tailored to its interests. restrictions” son, S., 460 U. at 788. today Washington’s that the of
The Court confirms State petition signatures to make available decision public inspection squarely realm falls within the of Buckley, regulations. permissible 525 election-related Cf. (describing requiring petition at 200 circula- S.,U. state law containing their names tors to submit affidavits and ad- type regulation” “exemplif[ying] of that dresses as identity may peti- adopt). of Public disclosure of States majority signers, overwhelming rule in the tion which is the referenda, that use initiatives and advances States’ States “[preserving integrity of the electoral vital interests in sustaining process, preventing corruption, active, democracy responsibility citizen in a alert individual government.” First Nat. Bank conduct of for the wise (internal (1978) 765, 788-789 Bellotti, Boston v. 435 U. S. omitted); quotation also Citizens alteration see marks and (2010) 371 Comm’n, 558U. S. v. Federal Election United (“[Transparency to make informed the electorate enables speakers weight give proper to different decisions and messages”); Respondent Families Brief for only exempts Standing Together (reporting one State disclosure). public petitions from initiative and referendum judge citizenry society the final “in which the is In openness public proper demo- business,” conduct Broadcasting importance.” process “critical Cox cratic is of (1975); Corp. post, Cohn, v. at 222 U. S. see also concurring judgment) (noting “[t]he (Scalia, J., lawmaking constitutionally required”). nature of federal *24 ledger, public the other side of the I On view the burden of speech rights minimal disclosure on and associational as respect in this context. As this Court has observed with to campaign-finance regulations, requirements “disclosure . . . prevent anyone speaking.’” ‘do not from United, Citizens S., 558 U. at 366. itWhen comes to initiatives and refer- impact expressive the enda, of on disclosure interests campaign-finance is even more attenuatéd. While disclo- injects government sure the into what would otherwise have private political activity, process by legislating been the of inherently public. qualify referendum is To a referendum required sign petition for the ballot, citizens are to a and supply identifying sign- information to the State. The act of ing typically public, occurs in and the circulators who collect signatures ordinarily signers guarantee and submit owe no confidentiality. persons courage” For with the “civic to participate process, post, (opinion in this at 228 of Scalia, J.), the State’s decision to make accessible what volun- tarily place public sphere in the not should deter them from engaging expressive petition signing. in the act of Disclo- identity petition signers, way sure of the in no moreover, directly impairs ability anyone speak the and associate political publicly privately. ends either or weight
Given relative of the interests at stake and the traditionally public proc- nature of initiative and rightly rejects petitioners’ esses, the Court constitutional challenge Washington’s petition to the State of disclosure regulations. any These same considerations mean also party attempting challenge particular applications regulations heavy State’s will bear a burden. a Even when particularly subject referendum involves a controversial and petition signers some fear harassment from nonstate actors, important “protect[ing] integrity a State’s interests process” reliability undiminished, remain initiative advancing significant discretion retains State Buckley, 191. be- Likewise, U. at S., those interests. peti- implicated act of expressive interests cause always signing I it difficult to see how find modest, are tion tip sign petition a would incremental disincentive may Case-specific available relief be constitutional balance. facially petition selectively applies a neutral when State on manner that discriminates based rule in a signers, viewpoint or the of referenda content poses a reason- in which disclosure in the rare circumstance probability widespread harassment of serious able unwilling v. or unable control. Cf. NAACP the State is (1958). Allowing rel. 357 U. Patterson, Alabama ex S. forgiving case-specific under more standard invalidation *25 breathing unduly room diminish substantial States would adopt implement reasonable, nondiscrimi- are afforded natory requirement at like the disclosure now measures presented as-applied Accordingly, with an courts issue. authorizing challenge regulation of the disclosure refer- to a any deeply skeptical petitions of assertion endum should be transparency, political which embraces Constitution, that the identity persons compels of who seek to conceal the States through lawmaking participate a referen- state-created join opinion understanding, process. I of this dum With the Court. Breyer joins, with whom Justice Stevens,
Justice
in the
and concurring
judgment.
concurring
part
on
a restriction
a
It is not about
This is not
hard case.
voting
speech
a
not
classic disclosure
on
involve
does
requirement.
a neutral,
concerns
nondis-
Rather, the case
already
criminatory policy
disclosing
in the
information
of
day
alleged, might one
possession
it has been
that,
State’s
imposed
signatories.
indirectly
The burden
burden
(PRA)
Washington’s application
Act
Records
Public
petitions
majority,
in the
referendum
vast
if not all, its
applications
given
is not
And the
substantial.
has
a
State
adequate justification
more than
for its choice.
application
aFor
number of
reasons,
the PRA to
petitions
substantially
any
does not
burden
indi-
expression.
regulation
pure
vidual’s
it
not “a
First,
speech.” McIntyre v. Ohio Elections Comm’n, 514 U. S.
(1995);
O’Brien,
cf. United
v.
States
1Although a “petition” political is a classic expression, type means the merely at in issue this case is not a document on people which expressing are their views rather par but is a state-created forum awith sorting ticular function: enough support those issues that have to
217 on constitutional the burden possible Weighed against case, In this for its rule. justifications are State’s rights an justification: a adequate has posited perfectly State 2 fraud. Given deterring detecting petition interest of similar regulations, of this interest and the pedigree is the PRA concrete evidence need not produce State v. Marion fraud. See way prevent best Crawford (2008) Bd., Election 191-200 181, (opinion 553 U. S. County Nixon v. Shrink J.) fraud); voting (discussing Stevens, (2000) (“The PAC, 377, 528 391 Missouri Government U. S. to satisfy heightened evidence needed of empirical quantum vary will judgments up scrutiny legislative judicial justification with the novelty plausibility down Timmons, J., S., 520 U. 375 raised”); see also (Stevens, theoretical” justifi dissenting) (rejecting “imaginative [and] assertion”).3 there is And cation “bare only by supported election- the State’s than evidence enough support more Vincent, Cf. v. space limited on a referendum ballot. Widmar warrant (1981) (Stevens, J., concurring judgment). 454 U. S. policy informs voters points also out that its disclosure In certain election-law supports particular referendum. about who others) may provide a contexts, (among basis this informational rationale ease, beyond look the State’s there is no need to regulation; this interest. quite obvious antifraud ordinary that the presumption think that our There is no reason to policy’s weigh than a benefits political are better suited courts branches degree to we defer to inapplicable in case. The which is this and burdens vary up with the must and down judgment by political branches considered, public-minded decision- judgment reflects degree to which adopted without rea to have been Thus, appears when a law making. Buono, 700, 756-757 consideration, see, g., v. 559 U. S. e. Salazar soned see, g., (2010) discriminatory purposes, e. (Stevens, J., dissenting), for (1960), 516, 517-518, or to entrench Bock, 524-525 361 U. S. Bates v. Little 317-319, Jubelirer, U. S. see, g., v. majorities, e. Vieth political willing (2004) are less (Stevens, J., dissenting), we 324-326, 332-333 may call legislature. That one strengths of the to the institutional defer to “disre is not a reason to create a law question process used into for an other “valid[,] justifications” “sufficiently strong,” neutral gard]” S., But it at 204. Crawford, 553 U. “nondiscriminatory” policy. wise for that measure. carefully justifications to examine more reason *27 218 ante, at 197-199 justification. See the
integrity (opinion Court). the
There remains issue petitioners’ chal as-applied As a of law, matter the Court is correct to lenge. keep open the in that instances in which a possibility particular policy such as the PRA burdens the expression “by public enmity Brown v. Socialist Workers Cam attending publicity,” ’74 (Ohio), Comm. paign 459 S. 98 (1982), U. speakers may “ have a constitutional claim. time winning to time '[F]rom ” “ have throughout history,’ persecuted been able 'to groups criticize oppressive practices and laws either anonymously ” or not at all.’ McIntyre, 514 U. at 342.4 S.,
In view, this is my unlikely to occur cases involving the PRA. Any burden on speech petitioners posit is as well as indirect. speculative For an as-applied challenge to a law such as the PRA to succeed, there would have to be a threat of significant harassment directed at those who sign the that cannot be mitigated by law enforcement measures.5 6Moreover, the character of the law challenged in a referendum does not, itself, affect the De- analysis. bates about tax policy regulation private property can 4Justice Scalia conceives of the issue right anonymous speech. as a to See, g., post, (opinion e. at concurring 220 in judgment). our But decision McIntyre posited such freewheeling right. no pro The Constitution 1; tects of speech.” “freedom McIntyre, S., Arndt. see also 514 U. at 336 (“The question presented is whether . . . prohibits [a] statute that anonymous distribution of campaign literature a ... abridging is ‘law speech’ Amendment”). freedom meaning within of the First That by freedom can be a exposes speaker burdened law that fines, to as much it can exposes speaker as be burdened a law harassment, to changes speech, prejudices content of his against others his mes sage. id., right, however, right 342. speak, to not the right speak being to right speak without fined or the anonymously. may A case rare arise in also which the level of threat to individual quite high is not so substantially but State’s disclosure would limit a ability group’s “garner signatures necessary place number [a] ballot,” thereby “limiting ability matter on [its] make the matter the Grant, (1988). focus of Meyer statewide discussion.” v. U. S. *28 partner- just about domestic as heated as debates become very general show ships. it difficult to matter, a And as signatories, disclosing in- of the names later sign willing petitions. as we Just less dividuals will be strong before past, I demand evidence have the would concluding speculative chain of events an indirect and speech.6 imposes not on A statute “is a burden substantial possibilities, upset hypothetical it upon if and unreal to be they upon good v. the facts as are.” Pullman Co. be would (1914). 26 Knott, 23, 235 U. S.
[*] [*] opinion Accordingly, the I of the Court to concur with my I concur own, extent that it is not inconsistent with judgment. in the Scalia, concurring judgment. Justice applied to the Amendment, claim the First as Plaintiffs through Amendment, the Fourteenth forbids States signed of to release to the referen- State they petitions, in order which submitted to State dum popular put suspend operation it to a vote. of a law and signing petition of sus- a that has effect I doubt whether speech” pending at all. “the a fits within freedom law does, at it concludes, ante, 194-195, But even as Court if, history practice long First that the Amendment a shows prohibit public not does disclosure. McIntyre repeat and extend the mistake should not
We
(1995). There, with
Comm’n,
been dissenting). century. J., at 371 The Court Id., (Scalia, prohibiting the held that an Ohio statute distribution anonymous campaign literature violated the First and Four- teenth Amendments. anony- sought right “speak” McIntyre general
Mrs. mously plaintiffs go step one Here, about referendum. general right anony- participate seek a further — mously Referendum.petitions in the referendum itself.1 are *29 subject public to under the disclosure Public Records Act (PRA), § (2008), seq. Wash. Rev. Code 42.56.001et which re- quires government agencies public “make to available for in- spection copying public subject and all records,” to certain §42.56.070(1). exemptions not relevant here. Plaintiffs agcontend personal that disclosure and other names, petitions, information included on the of those who took this legislative right action violates their First to Amendment anonymity. 1Plaintiffs seem to on McIntyre v. Ohio Elections disavow reliance
Comm’n, S. (1995), Reply 514 U. see Brief for 12. Petitioners McIntyre Certainly, are there between differences and this ease. McIntyre required Mrs. identity herself, by was to disclose her placing her name on Here, plaintiffs her handbill. do object signing not to their petition, names to the presumably where it can be observed by signers; they only later challenge the later of that informa tion public disclosure, State. But both are about eases and both anonymity involve a claim to under the First anything, Amendment. If plaintiffs the line partial seek to draw —which seeks a sort of anonymity— stranger is still. quibbles use,
Justice with shorthand I and tries to rein Stevens McIntyre’s holding, by in saying that it a “right speak did not create ante, anonymously,” (opinion part n. 4 concurring concurring in McIntyre judgment). in S., But the same used shorthand. See 514 U. (“[t]he id., (“[t]he right at 357 anonymous”); remain at 342 freedom to ibid, (“an publish anonymously”); see also author’s decision to remain anonymous aspect ... an speech protected of the freedom of by the Amendment”). First right, finding acknowledges it
Today’s opinion a such only of the interest here because State’s can be denied process,” integrity ante, “preserving of the electoral judicial my a matter for interest In this is not at 197. view longstanding legislat- balancing. traditions Our Nation’s voting ing the First the claim that refute performance right anonymity a in the accords Amendment governmental prac- governmental “A of an act with effect. general throughout States, the United tice has become long, accepted particularly the validation of one that has constitutionality.” usage, strong presumption of bears a McIntyre, supra, dissenting). at 375 (Scalia, J.,
I signs a a referendum When voter subject acting legislator. A, to the PR he is as Wash- legislative authority” “[t]he ington Constitution vests legislature, people in the but “the reserve to them- State any power approve reject polls selves the ... or at the passed by part act, or law act, item, section, bill, § power legislature.” Art. 1. This “referendum” legislation by submitting petition, popular is exercised *30 specifications, certain to the accordance with secretary signatures registered voters state with valid equal exceeding percent in to or of the votes number four §1(b); gubernatorial cast in the last election. Wash. Rev. (2008). § 29A.72.100,130, 140, 150, 160 Code filing petition that satisfies these re- The of a referendum (1) secretary quirements legal requires effects: It has two place people at to the on the ballot to measure referred (2) suspends operation general it the next election; days causing only after it it to have effect 30 is measure, 1(d). § during approved Brief for 2, that election. Art. pe- signs Respondent A a referendum Reed 2-6. voter who exercising legislative power because his tition is therefore against signature, a a bill in the somewhat like vote for or at to affect the force of the measure legal seeks legislature, issue.2 to no from this Court holding
Plaintiffs precedent point the First that is Amendment.3 Nor legislating protected that “the do historical evidence they identify demonstrating Amendment encom- the First codified freedom speech” without disclosure. This right legislate public passed come as no the exercise of should surprise; lawmaking power in the has been traditionally United States public.
The nature of federal is lawmaking constitutionally I, 3, § Article cl. 5, required. requires Congress legislate “Each House shall a Journal of its Proceed- public: keep from the same, time to time such ings, publish excepting in their Parts as and the may Judgment require Secrecy; of the Yeas and Members of either House on Nays any ques- shall, tion at the Desire of one fifth of Present, those be en- on the tered Journal.”4 constitutions State enacted around “only 2 The petition signing legal Court notes that some has effect.” Ante, 197, at n. petitions may 1. That is true. Some never be submitted secretary; they here, they subject to the are irrelevant since "willnever be petitions to the PRA. But some secretary may are submitted to the requisite signatures. those, lack the number of Even as to signer portion legislative has exercised his power signs when he petition, legislator losing much like a who casts a vote. quotes Republican Party White, The Court Minn. v. 536 U. S. (2002), State, “having tap which stated that a energy ‘cho[sen]to legitimizing power process,. and the of the democratic .. must accord the participants process rights Amendment First that attach to Ante, correct, point. their roles.’” at 195. That is but it not on White prohibition speaking involved a running judicial on as condition of for (or suggest I require legislators office. do not that a State could referendum) citizen-legislators participate give up who in a First rights legislating. Amendment with unconnected their act of The elec cites, ante, tioneering cases the Court are likewise not point, requirements applied political on since involve disclosure speech, legislative not action. exception may Judgment require “such Parts as their Se *31 crecy” assuredly designed permit anonymous voting. not It was refers important to details whose disclosure would threaten an national inter- g., provisions. founding e. See, had similar the time of (1798). §15 (1792); §20 Ky. Const., I,Art. Ga. I,Art. Const., “[A]s accountability desirability was obvious. The of Congress, representatives in no and senators votes yet enough or a secret ballot to vindicate man been bold has promotive of more wise, or more either more safe vote, as to their independence or more beneficial members, in the Story, on the Constitution constituents.” J. Commentaries 1873). (4th p. 591 ed. §841, Congress legis- people for asked even when
Moreover, right exercising changes by “to their constitutional lative — grievances,” petition U. S. for a redress Government petition they publicly The was so Arndt. did Const., 1— Congress. Associations, Mazzone, Freedom’s read aloud (2002). petitioner’s name The 639,' L. Rev. Wash. (when involved), request, large groups his and what were not consistently Congress taken on the were action had g., e. See, Jour- in the House and Senate Journals. recorded Cong., Sess., 163; 1st 18, 1790, nal June 1st Senate, Representatives, 24, 1820,16th Nov. House Journal people legisla- Cong., exercised Even when the Sess., 2d 32. openly anonymously, power directly, not but did so tive meetings. generally The Zimmerman, J. in townhall (1999). Meeting England Town New participating Petitioning government in the tradi- meeting precursors initiative of the modern town were tional innovations after were modeled Those and referendum. democracy by the 1800’s, similar devices used Swiss Dakota in South in the United States and were first used (2003). Giving 1-3, Piott, Voters Voice 1898. See S. initiative and referen- of the influential advocate most excep- created an of Confederation clause in the Articles The similar est. “relating to proceedings journal requirement parts tion to the judgment re- [Congress’s] treaties, military operations, as alliances broader, but requirement is IX. The Constitution’s quire seeresy.” Art. object obviously the same. its
224 analogized practice
dum in the United States the Swiss meeting, open “required the town because both conduct of political expression opinions.” Id., affairs and free at 5 (discussing Legislation by J. Direct Sullivan, W. the Citizen- (1892)). ship through the Initiative and Referendum Plain- argument implies public tiffs’ nature of these practices, longstanding unquestioned, so violated the speech. support freedom There nois historical for such a claim.
II Legislating only governmental not was act that was public Voting in America. was until 1888 when the began adopt States the Australian secret ballot. See (1992) (plurality Freeman, Burson v. S. 191, U. opinion). acknowledged We have the existence aof First voting, g., Amendment interest in see, e. Burdick Takushi, v. (1992), 504 S.U. 428 but we have never said it includes right history anonymously. voting to vote The in the completely United States undermines that claim. Initially, mostly English the Colonies continued tradi- voting by tions of a show hands voice—viva voce voting. supra, History Burson, at E. A 200; Evans, System (1917) Australian Ballot United States 1-6 (Evans). system One scholar described the viva voce as follows:
“ judges, magistrates, 'The upon election who were sat practica- a bench their with before clerks them. Where customary ble, it present was for the candidates be person, occupy judges. and to seat at the side of appeared, the As voter his name called was out in loud (or judges inquired, Smith), voice. The “John Jones you governor, whom do vote?”—for or whatever was the replied by proclaiming office to be filled. He the name of his favorite. Then the clerks enrolled the vote, and judges representa- announced as it The enrolled. he arose, bowed, five of the candidate for whom voted ap- partisans thanked him and his often aloud; plauded.’” (quoting of An Id., Wise, J. End (1899)). Era 55-56 Voting Revolutionary also R. America: A Dinkin,
Study Original of Elections in the Thirteen 1776- States, *33 (1982)(Dinkin). p. 101
Although there was the election official variation, would ordinarily compile poll with the name and residence of each the voter, and name of the candidate for whom he voted. Bishop, History See C. of Elections in the American Colonies (1893)(Bishop); Argersinger, 160-164 R Structure, Process, (1992) Party: Essays History in American Political 47 (Argersinger). prevent To fraud, the Colonies in Rhode Is- Jersey adopted English land, York, New and New the rule “copies poll per- of the must be on delivered demand to willing pay charge who sons were a reasonable for the writing Bishop of labor them.” 186. Colonies al- Some copy poll, lowed candidates to demand a of the ibid., and required legislature poll the to examine the in a contested govern- id., at election, Thus, case, 188-189. as this the only publicly identifying ment not collected information about who for candidate, voted and which it also disclosed public. that information to the
Any suggestion voting infringed that viva voce the ac cepted understanding pre-existing speech freedom the to which First Amendment’s text refers is refuted required fact that several state constitutions that or author voting explicitly guaranteed the ized viva voce also freedom § § speech. g., Ky. e. Art. Art. See, Const., X, 7, VI, (1818). § § (1799); Surely Const., VIII, 22, I, Ill. Art. Art. provision one constitutional did not render the other invalid. voting gradually practice Of course the of viva voce was replaced paper thought ballot, with the which was to reduce 1-6; fraud and undue influence. Evans Dinkin 101-106. See There that the is no indication shift resulted from sudden infringed voting realization that voters’ freedom speech, suggests and the manner in it occurred which contrary. adopted paper different times, States ballot at changed multiple and some States methods times. New example, explicitly provided 1777Constitution, York’s for the State to switch Art. between methods. VI. Ken- tucky’s § required paper 1792Constitution Art. ballots, Ill, 2, voting, required its 1799 VI, but Constitution viva voce Art. § voting simply 16. The different methods reflected differ- democracy ent views about how should function. One Virginia’s Kentucky’s scholar described steadfast use voting through “[I]n voce viva the Civil War as follows: appeal unflinching polls at manliness these two states every hustings insisted still that voter at should show the courage personal of his conviction.” Schouler, Evolution American Voter, The American Historical Review (1897). (“In Virginia 665, 671 id., also 666-667 and' other expres- states close affiliation with her this oral *34 privilege was sion vaunted as the of the free-born voter, by outspoken the that show faith was in him an announce- candidate”). ment his paper voting
The anonymous. new ballots not make did (“[T]he secret”); Argersinger Evans 10 See ballot not was 48 (“Certainly legal provisions there were no to ensure se- crecy”). Initially, many regulate did not States form paper Argersinger 10; ballot. See Evans 48-49. Tak- ing advantage political parties began printing this, ballots They brightly their with candidates’ on names them. used paper markings colored and other distinctive so that the recognized making ballots could be from a distance, public. supra, votes Burson, See at 200-201; Evans 10-11. paper rampant. Abuse of these unofficial ballots was The polling place “open place” had become an auction where freely bought supra, votes could be Burson, coerced. Employers employees. Party at 202. threatened workers
227
kept
party away
voters from the other
from the ballot box.
peddlers paid
place
Ballot
voters and then watched them
ballot
the box.
L.
The Australian
Fredman,
Ballot:
Story
(1968);Argersinger
The
of an American Reform 22-29
although
voting
48-50.
state courts
Thus,
some
said
by
ballot was meant to
than
be more secret
act
voting;
although
of viva voce
some state constitutional
requirements
voting
guarantee
of ballot
were
held
ballot
secrecy,
prohibiting
numbering
thus
of ballots for voter
purposes,
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Stein,
see Williams v.
[*] [*] . [*] long history public legislating voting contra- plaintiffs’ petition signatures claim that dicts *35 having legislative effect violates the First Amendment. As McIntyre, meaning “[w]here I said in of a constitutional (such speech’) text as ‘the unclear, freedom of wide- spread long-accepted practices people of the American are the best indication of what it was fundamental beliefs (dissenting opinion). intended to S., enshrine.” 514 U. at 378 century-old practice prohibiting anony- Just as of States’ electioneering reject mous was sufficient for me to the First anonymity McIntyre, many- Amendment claim to practices public legislating voting centuries-old are reject plaintiffs’ sufficient for me to claim.
Plaintiffs sig- raise concerns that the disclosure of may natures nothing prevents lead to threats and intimidation. Of course people Washington keeping pe- from signatures just nothing tition pre- secret to avoid as that — moving vented the States from to the secret ballot. But impose there is no constitutional basis for this Court to (as upon does) today’s opinion course the States —or to insist only that it can be avoided the demonstration of a “suffi- ciently important governmental (in- interest,” ante, at 196 omitted). quotation ternal may marks And it even be a bad keep petition signatures idea to secret. There are laws against threats and intimidation; and harsh criticism, short price people unlawful action, is a traditionally our have willing pay self-governance. been Requiring people up political to stand for their acts fosters civic cour- age, democracy without which my part, is doomed. For I do society not look Supreme forward to a which, thanks to the campaigns anonymously (McIntyre) Court, and even exer- democracy cises the direct of initiative and referendum hid- public scrutiny protected den from from the accountabil- ity of criticism. This does not resemble the Home Brave.
Justice Thomas, dissenting. “[cjonfidence integrity
Just as proc in the of our electoral functioning esses is essential to participatory of our de mocracy,” (2006) (per Purcell v. Gonzalez, 549 U. S. cu riam), participation so processes, too is citizen in those necessarily political speech which entails and association my compelled under the First In Amendment. view, disclo *36 signed petitions1 sure of referendum and initiative under Washington (PRA), Public Act Records Wash. Rev. Code §42.56.001 (2008), seq. severely rights et burdens those participation chills process. citizen in the referendum Given Washington’s those I burdens, would hold that decision to subject petitions public all referendum disclosure is uncon always stitutional because there will be a less restrictive Washington means which can vindicate its inter stated preserving integrity est in process. of its referendum respectfully I dissent.
I This case concerns the interaction of two distinct sets of Washington Washington’s statutes. The first set, codified regulates Election proc- Code, the referendum and initiative require, among things, ess. These statutes other that refer- signers endum write their names and addresses on sheets, mandate that this information be disclosed to Washington’s secretary canvassing of state for and verifica- e.g., (2008). tion. See, §§29A.72.130,29A.72.230 Petition- requirements ers do not that contend these violate their rights; argue First Amendment is, do not that the support Constitution allows them to a referendum measure disclosing without their names to the State.
The second set of statutes —the PRA—is not referendum regulation. or election requires Rather, PRA nonexempt “public upon of all request by any per- records” §§42.56.010(2), Washington son. See 42.56.070. has con- signed petitions “public cluded that are records” subject “routinely to disclosure under the PRA, and has dis- petitions response requests.” closed records Respondent Brief for Reed 5-6. 1Generally speaking, referendum, in a approve reject voters or an Act
already passed by legislature. initiative, In an adopt reject voters entirely law, an new either a statute or a constitutional amendment. Cronin, Democracy: T. Initiative, Direct Referendum, The Politics of (1989). Recall constitutionality challenge the
Petitioners do not They generally. only PRA vio- contend *37 rights by construing lates their Amendment First PRA apply signed petitions. to to Brief See for Pe- parties dispute titioners 35-39. As Court notes, challenge challenge whether this is best conceived as a facial challenge. as-applied my or an at ante, See 194. In view, “satisfy correctly petitioners the Court concludes that must challenge” our a facial standards for because their claim, beyond” “particular the relief seek, “reach their circumstances.” Ibid. typically challenges. Washington
We facial disfavor See Grange Washington Republican Party, State v. State 552 (2008). They speculation,” U. S. “often on rest can unnecessarily anticipate ques- lead courts constitutional may tions pre- or formulate rules, broad constitutional governmental implementing vent officers from laws “in manner consistent Id., with Constitution.” at 450-451. rejected Washington For Grange those reasons, we State political parties’ preenforcement challenge facial to a Wash- ington primary initiative that allowed in a candidates elec- self-designate political party preference tion to their on the primary election id., ballot. 458-459. Because the challenge preenforcement Washington was a one, “had no opportunity implement” the initiative, id., at 450, so the political parties’ arguments that it violated their association rights depended possibility all “on that voters will be meaning party-preference designa- confused as to the challenge inappro- tion,” id., at Moreover, 454. a facial was priate regulation impose because the on did “not its face political parties’ a severe rights.” burden on associational Id., at 444. point opposite
Those considerations in the direction here. Washington’s impose[s] construction the PRA “on its face compelled privacy a severe burden,” ibid.— political protected by association the First Amendment, see signers. page all referendum And and 232—on this infra several, implement” “opportunities] Washington has had respect requirements to initiative with PRA’s disclosure Washington Grange, supra, petitions. In- at 450. State petitions Washington “[a]ll initiatives, admits deed, public rec- nomination are recall, and candidate referendum, Respondent subject 59; Brief for Reed to disclosure.” ords (listing completed requests App. for disclosure also six see 2006). Washington signed petitions initiative thus since “possibility” that referendum has eliminated respond signers to” how the will “will be confused as State request their names and ad- the PRA disclose to a under Grange, at 454. S., State U. dresses. challenge Accordingly, petitioners’ facial I would consider *38 pre- purposes case, I will assume here. For of this petitioners satisfy rigorous standard, must our most vail, “is ‘noset of circumstances ... under which show that there ” applied constitutionally to a referendum the’ PRA could be petition, [PRA] e., is unconstitutional or initiative “i. (quoting applications,” id., all at 449 United States of its (1987)). Salerno, 739, 481 U. 745 v. S.
II A correctly “an ex- The concludes that individual Court “political by signing petition. presses” a referendum view” rightly rejects the base- Ante, at 194-195. The Court also activity argument expressive falls “outside that such less legal merely scope “it has because of the First Amendment” process.” Yet, at 195. Ante, electoral effect implica- acknowledge the full constitutional does not Court tions of these conclusions. activity signing political expressive a referendum example practice persons paradigmatic
petition of “the ais banding together sharing to achieve a com- common views Against Rent Control/Coalition mon end.” Citizens 232 (1981). Housing Berkeley,
Fair v. 454 S. A refer 290, 294 U. signature supported by only person’s nullity; endum one is a placed petitioners it be will never on ballot. The Doe recognized much when 120,000 as more than other —and Washingtonians, joined petitioner ante, see with 192— Marriage Washington, political Protect “a state action com organized mittee” under §42.17.040,to effect Protect Mar Washington’s riage “major purpose” collecting enough signatures place general valid Referendum 71 on the elec App. tion ballot. to Pet. for Cert. 29a. For these reasons, signing “‘political a referendum amounts to asso protected by ciation’” the First Amendment. Citizens Against supra, (quoting Buckley Rent Control, at 295 v. (1976) curiam)). (per Valeo, 424 1, U. S. long recognized relationship
This Court has the “vital be political privacy tween” association “and in one’s associa tions,” NAACP v. Alabama ex Patterson, rel. U. S. (1958), “[t]he protects against and held that Constitution compelled political disclosure of associations beliefs,” (Ohio), Campaign Brown v. Socialist Workers Comm. ’74 (1982). protection 459 U. S. This constitutional “yield[s] only subordinating to a interest of the State that is compelling, only and then if there is a substantial relation sought overriding between information and an and com (internal pelling quotation state Id., interest.” at 91-92 *39 omitted). marks, and citations, Thus, brackets unlike the precedents require application I Court, our read of strict scrutiny compel protected to laws that disclosure of First Buckley Amendment association. v. American Constitu (1999) tional Law Foundation, Inc., 525 U. .182,206, S. 212 (ACLF) concurring judgment). J., in Under that (Thomas, requirement passes a standard, disclosure constitutional only narrowly it muster if is e., tailored—i. the least restric compelling tive means—to serve state interest. See id., at 206.
B peti- application Washington’s to a referendum of the PRA scrutiny. not survive strict tion does compelling Washington interest that it has a first contends accountability,” “transparency it claims encom- which integ- preserving passes interests: several subordinate corruption, deterring preventing rity process, election of its secretary correcting of state mistakes fraud, and Respondent by petition signers. 40-42; Brief for Reed 57-59. regulat- interest
It true that a has substantial State the[ir] processes protect ing “to referendum and initiative its reliability.” integrity But ACLF, S., 525 U. at 191. recog- precedent Washington points from this to no Court compelling nizing “correcting interest errors” as a distinct regulations. support our cases that could And deterring preventing corruption strongly suggest that weight particular electoral context: less this fraud bear stage signature-gathering initiative of a referendum or that “The risk of observed The Court has twice drive. corruption, appearance re- is more thereof, or the fraud or stage at the time of of an initiative than at the mote ” (quoting Meyer balloting.’ Grant, v. U. S. at 203 Id., “[rjeferenda (1988)). Similarly, are held on because corrup- public the “risk of office,” not candidates issues, simply involving perceived candidate elections in cases tion popular First present on a issue.” in a vote is not (1978) Bellotti, 435 U. S. Boston v. Nat. Bank omitted). (citations merely principles because those should not abandon
We eight point mere instances can to a and its amici Respondent 42; Reed see Brief for fraud, of initiative-related among 22-24, Amici Curiae et al. as Brief for State Ohio placed in this on state ballots measures the 809 initiative *40 country between 1988 and see Initiative and Ref- (Feb. 2009), Institute, Use 2 erendum Initiative online http://www.iandrinstitute.org/IRI%20Initiative%20Use%20 (as (1904-2008).pdf and 21, 2010, visited June available in file). anything, meager figures Clerk of case If Court’s these corruption reinforce the conclusion that the risks of fraud or process in the initiative and referendum are remote and thereby Washington’s claim undermine that those two inter- compelling purposes ests should be considered for of strict scrutiny. persuaded Washington’s I not
Thus, am interest in protecting integrity reliability of its referendum process, compelling. as the State has that interest, defined is question assuming But I need not answer that here. Even compelling, the interest is on-demand disclosure of a referen- any person dum under the PRA is “a blunderbuss approach” furthering Republican Colorado interest, Campaign Federal Comm. v. Federal Election Common,518 (1996) concurring judgment U. S. J., in (Thomas, (internal dissenting part) quotation omitted), in marks not doing the least restrictive means so. The events that prompted petitioners’ complaint in this case demonstrate as much. Washington explained during argument,
As oral after the secretary signed petitions, of state receives referendum his step archiving “first is to take ... them his section and digitized. they’re digitized, they’re have them as As soon anyone requests available on disks who them” under the Arg. organizations PRA. Tr. of Oral 30. In this case, two digitized announced their intention to obtain the names and post signers addresses them “online, searchable format.” at 193. Ante, apparent why broadly
There is no reason must signers’ disclose referendum names and addresses this manner to vindicate interest that it invokes here. Wash- ington possession that information because —which *41 challenge, regulations petitioners do not that of referendum put supra, of ref- the names and addresses at 229—could see signers that state database into a similar electronic erendum subjecting employees the name and ad- search without could signer The sec- disclosure. each to wholesale dress of electronically retary the referendum cross-reference could registration against list” con- the “statewide voter database registration Washington’s data- voter tained in “statewide 29A.08.651(1),2 § ensure that each referendum base,” residency registration Washington’s signer and voter meets § Doing presumably requirements, would see 29A.72.130. so drastically possible errors or mistakes reduce or eliminate Washington argues secretary might see Brief make, secretary Respondent it Reed since would allow verify virtually signatures all of of the mere instead (internal “ordinarily quota- at 198 checks,” ante, “3 to he 5%” omitted).3 tion marks also enable the
An electronic referendum database would secretary multiple correspond entries to determine whether thereby detecting single registered whether a voter, to a signed addition, more than once. In voter had “ “forgery” protect would victims of ‘bait and database Washington, unique identifier Ibid. In “a switch’ fraud.” legally registered assigned voter in the state.” to each 29A.08.651(4). § Washington site, create a linked could Web where a voter con- database, the electronic referendum fraudulently signed could con- that his name had been cerned using unique that his his identifier to ensure duct a search requiring from the dis- name was absent database —without law, single as the Washington “computerized this list must serve Under registered voters storing maintaining the official list of system for registration the name and infor “must contain throughout the state” and in the Rev. Code every legally registered voter state.” Wash. mation of 29A.08.651(2)-(3) (2008). §§ verify can secretary of (permitting § state 29A.72.230 methods). sampling using approved statistical petitions vass voluntary, legit- closure of the names and all the addresses of signers. imate creating admits that this sort ref- electronic Arg.
erendum database “could done.” be Tr. of Oral 51. system Implementing place heavy not such would burden Washington; Secretary already on “the staff” State’s uses registration an “electronic voter database” in its “verification process.” Id., 50.
Washington nevertheless contends its citizens must *42 public independently “have access to to records ... evaluate Secretary properly certify whether the to determined or not certify Respondent to a referendum to the ballot.” Brief for signed “[W]ithout petitions 41. Reed the access to that the provides,” Washington argues, PRA its “citizens could not judge fulfill their role as final the business.” Ibid. (internal omitted). quotation marks Washington’s already gives Washing-
But Election Code petition ton voters access to referendum data. Under § “[t]he signatures 29A.72.230, verification and canvass on petition [referendum] may by persons repre- be observed senting opponents proposed the advocates and meas- long ure so as make no names, record addresses, petitions or other information on or related records dur- ing process except upon” the verification court order. Each although side is to at least observers, entitled two such secretary may opinion, doing if, increase number in his delay disruption so would not “cause undue or of the verifi- process.” cation Ibid.
Washington why explain existing does not this access, petitioners challenge per- which here, do not is insufficient to process mit its citizens to oversee the verification under intelligently pursue or to §29A.72.230, decide whether to a § challenge court Washing- under Moreover, 29A.72.240. if implemented narrowly ton had the more tailored electronic referendum above, database discussed observers could see secretary employees using of state’s examine the data techniques they exactly use if the data were would the same digitized Obtaining list a to them under PRA. released computer navigate an ob- would not allow on their own to learn additional information. server Washington other measures law also contains several integrity process. preserve it First, referendum forge signature a a on referen- is a crime in knowingly sign petition, one more than once. See dum § supporters gather must a Second, 29A.84.230. referendum large signatures percent of the votes number of valid —four immediately preceding gubernato- in the cast for Governor place petition rial election—to a referendum on the ballot. §29A.72.150. pe- Washington’s required Third, single subject. form each tition limits §29A.72.130. large, plain-English warning Fourth, must appear top petition, alerting signers at the of the referendum § requirements. to the Fifth, law’s See 29A.72.140. Wash- ington prescribes the text of the that a circulator declaration along signed petition must submit with the sheets. See §29A.72.130. Washington prescribes Sixth, verification and § canvassing 29A.72.230. methods. See *43 provisions, The Court’s dismissive treatment of those see perplexing, given analysis ante, at is that the Court There, in held that two endorsed ACLF Court disclo- requirements governing process sure initiative Colorado’s specifically at unconstitutional, S., 186-187, were see 525 U. finding by were “not warranted the state interests voters) (administrative efficiency, informing detection, fraud alleged justify” emphasizing “judgment that its them, by employs [wa]s other means to accom- informed Colorado plish regulatory purposes,” id., at The entire its 192. last problem- opinion section of the detailed those “less Court’s d[id] atic “can and meet” measures” which Colorado its regulating proc- “substantial interests in the ballot-initiative added). exception (emphasis at Id., ess.” With one —a deeming an if the circulator law initiative void violated applicable process law to the circulation Colorado —those exactly correspond Washington regulatory laws to the re- quirements Including listed id., above. See at 205. the ob- § provision, provision permitting server 29A.72.280,and (or secretary’s certify court review of the decision to not to § certify) petition, Washington a referendum 29A.72.240, thus appears provide problematic more of even the “less meas- “protect integrity ures” than Colorado did the initia- process,” why Washing- tive id., at and I no see reason provisions analysis ton’s identical should not “inform” the here. readily apparent Washington
It is can vindicate its “transparency accountability” through interest stated narrowly number more tailored means than wholesale public Accordingly, justify disclosure. this interest cannot applying petition. PRA to referendum
Washington compelling also contends that it has a interest “providing relevant information to voters,” and that narrowly disclosure on-demand to the is a furthering tailored means of that interest. Brief for Re- spondent argument easily dispatched, Reed 44. This already rejected since this Court has it in a similar context. McIntyre In v. Ohio Elections Comm’n, S. 334 U. (1995), prohibiting anony- the Court held that an law Ohio political pamphleting mous violated First Amendment. justify One of the interests Ohio had invoked to that law was Washington’s providing identical here: the “interest in electorate with Id., relevant information.” at 348. “plainly support called Court that interest insufficient to constitutionality requirement.” [Ohio’s] Id., simple providing 349. “The interest with voters addi- *44 justify require- tional relevant information does not state ment that a writer or make statements she disclosures would Id., at otherwise omit.” 348. “Don’t underestimate (internal quota- Id., at n. advised. we man,” common omitted). tion marks enough intelligent the source
“People to evaluate are anonymous. They writing. anonymous can it is see an They anonymous. can evaluate its ano- They it is know message. along once nymity then, . .. And its with 'responsi- what is it them to decide done is for so, have Ibid, (inter- and what is truth.” valuable, what is ble,’ omitted). quotation marks nal (“The inherent worth of at 777 Bellotti, S., 435 U. also informing capacity speech for in terms its source”). identity depend upon of its not does applies equally measures. to referendum This observation intelligent enough of a ref- People the merits to evaluate are just supported knowing it. as Thus, who without erendum justify informational not the Ohio law interest did this justify applying McIntyre, to referen- the PRA it not does petitions. dum
C involving every foregoing analysis applies in case dis- The supporters, must for as it measure’s of a referendum closure Washington challenge petitioners’ to succeed. See facial (quoting Grange, Salerno, S., 481 U. at 449 S., 552 U. State 745). strength argue that the its does not accountability falls transparency interest rises or based argument an topic would such of a referendum. Nor on the Washing- convincing. assume that have no basis to We be integrity maintaining referendum of its interest in ton’s high referendum but low process charter-school for a library or unemployment or that referendum, insurance an target likely of fraud to be a more referendum is land-use coverage and on insurance corruption than a Washing- strength of at 200-201. ante, benefits. See types of referen- across all constant remains ton’s interest dum measures. *45 strength signer’s
So too does the of a First Amendment rights interest. First Amendment at issue here are as rights, long, sociational and a unbroken line of this Court’s precedents privacy protected holds that of association is supra, under First Amendment. 231-232. The privacy disclosing loss of associational that comes with refer petitions general public endum to the under the PRA consti signer tutes the same harm as to each of each referendum, regardless topic. signer of To be sure, referendum may willing general public be more his to disclose to the political persons signing association with certain referendum than measures his association with others. But that choice belongs may to the voter; the State not make it for him ascribing protection a lower level of First Amendment to an (or. may associational interest that some think a voter be be) willing Rosenberger should more to disclose. Cf. v. Rec (1995) tor and Va., Visitors Univ. U. S. (“In private speech expression, government the realm of regulation may another”). speaker not favor one over
Finally, the less restrictive means available to vindicate Washington’s transparency accountability interest can employed regardless be for all referendum measures, topic. nothing measure-specific There is about an electronic forgery database or prohi- additional observers. And the existing requirements bition and other law help “protect integrity process,” of the initiative apply equally ACLF, 525 atS.,U. to all referendum measures. strength Washington’s transpar-
Because the interest in ency signer’s individual First Amendment interest in privacy political association remain constant across all ref- topics, pro- erendum and because less restrictive means to integrity process topic tect the of the referendum are not specific, I would hold on-demand disclosure of ref- petitions narrowly erendum under the PRA is not tailored referendum.
III Significant practical problems requiring will result from as-applied challenges protect signers’ consti- rights. tutional
A approach “require litigation The Court’s will substantial potential signer any an time” over extended before signs whether, referendum will learn if he a referendum, privacy right his associational will remain intact. Citizens Comm’n, United v. Federal Election U. S.
(2010). litigant’s trying And tenacious reward to protect rights? “interpretive his First An Amendment process [that] pervasive, itself an inevitable, would create chilling protected speech pending and serious risk drawing of fine distinctions in the that, end, would them- questionable.” large selves be Id., 327. The number of questionable types such fine and in distinctions these of cases my as-applied challenges provide reinforces view that no signers’ more than “a hollow assurance” that referendum rights protected. First Amendment will Id., be at 484 concurring part dissenting part). J., (Thomas, just examples. Consider a few Washington, sponsor pro- In a referendum must file the posed secretary referendum with the of state before collect- § ing signatures. May sponsor See 29A.72.010. seek an injunction against through as-applied challenge disclosure an filing proposed simultaneously before measure, or with filing? signature gathering its Because will not have sponsor present started, will not be able to evidence specific signers potential signers particular or of that ref- showing probability erendum “a reasonable that the com- pelled personal subject [of information] will them reprisals to threats, harassment, or from either Government (internal private parties.” quotation officialsor Ante, at 200 omitted). stage litigation, marks at that Thus, succeed least) (at plaintiffs point must one other instance of har- arising assment from a similar referendum. The Court has acceptable; never held that such evidence would be if it but necessarily signers, point, is, that means some at some repri- will have suffered actual “threats, harassment, and engaging protected activity. sals” for First Amendment sponsor signature If the gathering must wait at least until as-applied has started challenge, on his to file an it is still unclear what sort of evidence of “threats, harass- reprisals” supporters ment, or directed toward his would satisfy many the Court’s standard. How instances of reprisals” signer “threats, harassment, amust endure be- may grant fore as-applied a court challenge? relief on an dispersed throughout group And how necessary signers, 120,000 see ante, at 192, must these threats be? importantly, More appear Court’s standard does not require reprisals,” actual “threats, harassment, or but *47 merely probability’” a “‘reasonable that disclosure of the signers’ names and activity. addresses will lead to such added). (emphasis Ante, at 200 What sort of evidence suf- satisfy apparently fices to though this more perhaps relaxed, more elusive, standard? Does one instance of actual harass- signer ment directed toward one mean that the “reasonable probability” requirement again, is met? And how wide- spread probability” must this “reasonable be? The Court any questions, does not answer leaving of these a vacuum to case-by-case be filled on a basis. This will, no doubt, result “drawing arbitrary in the “questionable” of” “fine dis- by tinctions” even the most well-intentioned district or cir- judge. cuit United, Citizens 558 U. at S., 327.
B previously In explained, I addition, as have the state of technology today probability sign- creates at least some every subjected ers of referendum will be to threats, harass- reprisals personal ment, if their information is disclosed. “ rapid ‘[T]he advent of the Internet’ enables” dissemination every of “‘the information to” threaten or needed’ harass J.). signer. (opinion Id., referendum at of Thomas, permits speech “Thus, ‘disclosure citizens ... to react to the political [their opponents] proper’ undeniably in a im- —or proper ‘way’ long plaintiff prevail before a could an on as- — applied challenge.” Ibid. apparently disagrees, asserting
The Court that “there is by imposed no reason to assume that burdens typical petitions remotely would be like the plaintiffs burdens fear in Ante, this case.” at 201. That premise conclusion rests on the that some referendum meas- benign are ures so fact disclosure will not protected activity. chill First Amendment I am not con- premise vinced that this is correct.
The historical evidence shows that the referendum and ini- process gained popularity “provid- tiative first as a means of ing] safety an occasional valve for interests that failed to get hearing legislatures.” a fair in the T. Direct Cronin, De- mocracy: The of Initiative, Politics Referendum, and Recall Unsurprisingly, such interests tended be con- (1989). Early examples troversial single nature. include “the prohibition, suffrage, prolabor legislation, tax, women’s graduated proponents Id., income tax.” at 58. And politically marginalized initiative measures tended to include groups such as the “Farmer’s Alliance” in rural States; “[thousands notably federations, labor the miners”; and Suffrage “the Women’s Association,” which “saw the initia- *48 possible tive and referendum as a new means to overcome” repeated attempts legislatures failed in state to secure for. right women the Id., to vote. at 50-51.
These characteristics of initiative and referendum drives persist today. example, goal increasing Consider, for government seemingly unobjec- in ethics laudable and —a goal. thought tionable So some citizens of Utah, who, frus- legislature’s pass trated with the state failure to ethics laws a with their filed initia- commensurate preferences, “21-page tive conduct with a broad of re- array targeting] legislative that forms would how business significantly change gets McKitrick, done on Utah’s Hill.” Demands Suit Se- Capitol Tribune, for Ethics Petition Salt Lake crecy Signers, Apr. (hereinafter Tribune). A4 Lake But Salt Utah p. law that which contain the packets,” “[initiative provides birthdates) names and addresses in some (and, cases, peti- tion “are once are delivered to the signers, they clerks” for county verification and Utah Code canvassing. 20A-7-206(7) (2009 § Ann. Lexis Supp. Pamphlet).
The that initiative for an in- attorneys sponsoring moved junction disclosure of the initiative prevent under packets “ 20A-7-206(7) § because, claimed, ‘[t]he Republi- [state] ” can has said it will Party our folks.’ Lake target Salt Trib- une A4. to these According ini- attorneys, facially benign tiative well result may political retribution and retaliation in a State where Republicans hold the currently offices of Governor, Lieutenant Governor, attorney general, state treasurer, state auditor, and in both the supermajority (71%) Utah House of and the Utah Representatives Senate (72%), see State Yellow Book: Who’s in the Who Executive Legislative Branches 50 State Governments 650- 651,1292-1294 2010), as well as four of (Spring the five seats in the State’s to the delegation United States Congress, GPO, see 2009-2010 Official 111th Congressional Directory, . (2009). 299, 307 Cong., pp. difficulty which referendum predicting measures
will controversial —combined prove with de- Washington’s fault position signed will be petitions dis- on demand, closed thereby allowing anyone this in- place formation on the Internet for broad dissemination —raises significant probability today’s decision will “inhibit the exercise of First Amendment legitimate with activity” Colorado to referendum respect and initiative petitions. Republican, S.,U. at 634 (Thomas, J., concurring judg-
245 requirements dissenting “[Disclosure part). in ment and implement po- private elected officials citizens and enable campaign- strategies specifically calculated curtail litical peaceful activity prevent exercise lawful, and related rights.” United, S., 558 U. Citizens of First Amendment dissenting concurring part J., 488 at (Thomas, reality;4 recognized long part). this as the cases have Our recently not Amendment does First reiterated, Court “archetypical” “case-by-case require if First determinations” rights Id., in the meantime.” chilled Amendment “would be at 329. activity protected Amendment harms
This chill in First already signer. ex- have the dissuaded We others besides “mak[e] deep skepticism it pressed that about restrictions garner likely that” a “will number less necessary place signatures on thus ballot, the matter ability limiting [the] to make the matter the focus state- Meyer, 486 U. 423. Such restric- S., discussion.” wide quantum speech “inevitabl[y] reduc[e] the . . total . tions very public the A is Ibid. The PR on a issue.” way by supposed to serve is thus harmed implements that here. statute
[*] [*] [*] gives sup- argue do not that the Constitution Petitioners any- petitions right porters to act without of referendum 4 Patterson, ex U. S. g., NAACP v. Alabama rel. See, e. (1958) compelled (noting “hardly perception . . . novel advocacy may constitute” an groups engaged with of affiliation Bock, Little association”); Bates v. . . restraint on freedom “effective . (1960) (“Freedoms of association such the “freedom 516, 523 as” U. S. “protected grievances” are advancing airing ideas purpose attack, being stifled but also from only heavy-handed frontal against not (Black id., interference”); at 528 also government see by subtle more (“First beyond abridg rights are JJ., concurring) Amendment Douglas, sup byor directly their exercise legislation that restrains ment either exposure by humiliation, harassment, through impairment pression or added)). government” (emphasis *50 knowing Washington’s require-
one their Thus, identities. supporters sign ments their names and petition, addresses to a referendum and that this information canvassing be disclosed to the State for verification, see peti- Rev. §29A.72.230, Wash. Code are And, not at issue. Washington’s may tioners do not contend that citizens never Washington’s obtain access to referendum Thus, data. rules allowing representative access to least two observers from authorizing each side, ibid., see courts review the sec- retary canvassing of state’s verification and decision if those secretary’s observers are dissatisfied with the decision, see question. §29A.72.240,are also not in The Court constitutionality is asked to assess the only regard petitions. ques- PRA with to referendum signers tion peti- before us is whether all of all referendum litigation tions must resort “substantial over an extended supra, prevent time,” Citizens United, at 326, to trenching protected from their rights on First Amendment by subjecting petition signatures their referendum to on- my demand disclosure. In view, need not.