561 U.S. 186, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010)
Washington allows citizens to challenge state laws by referendum.1 Roughly four percent of Washington voters must sign a petition to place a referendum on the ballot, and each signature must include the signer's address and county of registration.2 The secretary of state verifies and canvasses the petitions to ensure only lawful signatures are counted.3 The Washington Public Records Act authorizes private parties to obtain copies of government documents, and the state treats submitted referendum petitions as public records subject to disclosure.4
In May 2009 Governor Christine Gregoire signed Senate Bill 5688, which expanded the rights and responsibilities of state-registered domestic partners, including same-sex domestic partners.5 That same month Protect Marriage Washington organized as a state political committee to collect signatures for a referendum on the bill.6 On July 25, 2009, Protect Marriage Washington submitted a petition containing over 137,000 signatures.7 The secretary of state determined the petition contained enough valid signatures, the referendum known as R-71 appeared on the November 2009 ballot, and voters approved the bill by a margin of 53 percent to 47 percent.8
By August 20, 2009, the secretary of state had received requests for copies of the R-71 petition from an individual and four entities, including Washington Coalition for Open Government and Washington Families Standing Together.9 Two entities issued a joint press release stating their intention to post the names of the R-71 petition signers online in a searchable format.10
The referendum petition sponsor and signers filed a complaint and motion for preliminary injunction in the United States District Court for the Western District of Washington.11 Count I of the complaint alleged the Public Records Act is unconstitutional as applied to referendum petitions generally.12 Count II alleged the Act is unconstitutional as applied to the Referendum 71 petition because signatories faced a reasonable probability of threats, harassment, and reprisals.13 The district court granted a preliminary injunction on Count I.14 The Ninth Circuit reversed that decision on Count I.15 The Supreme Court granted certiorari.16
Whether disclosure of referendum petitions in general violates the First Amendment?17
The compelled disclosure of signatory information on referendum petitions is subject to exacting scrutiny, which requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest, and the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.18
No. The state's interest in preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and promoting transparency and accountability is undoubtedly important.19 The PRA disclosure requirement bears a substantial relation to that interest because the secretary ordinarily checks only 3 to 5 percent of signatures and public disclosure helps cure inadequacies in verification, prevents forgery and bait-and-switch fraud, and ensures only valid signatures are counted, as occurred when Protect Marriage Washington submitted over 137,000 signatures on July 25, 2009, the secretary verified enough for Referendum 71 to reach the November 2009 ballot, and requests arrived by August 20, 2009 from entities planning online posting.20 The burden on typical referendum petitions is modest, as several other Washington petitions have been released without incident, and plaintiffs offered scant evidence of burdens beyond those feared for controversial petitions like R-71.21
Disclosure of referendum petitions in general does not violate the First Amendment.22
Related opinions on this issue
Justice Breyer joined the opinion of the Court while writing separately to highlight the balancing methodology appropriate when laws implicate competing constitutional interests.23 He noted that when a law significantly implicates competing constitutionally protected interests in complex ways, the Court balances those interests.24 In practice this balancing requires asking whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon the others.25
He found that both the Court and Justice Stevens applied this approach to the disclosure requirement at issue. For the reasons stated in those opinions, as well as many of the reasons discussed by Justice Sotomayor, he would uphold the statute challenged in this case.26
Justice Sotomayor wrote separately to emphasize a point implicit in the opinion of the Court.27 She stressed that initiatives and referenda are not compelled by the Federal Constitution.28 States enjoy considerable leeway to choose the subjects eligible for the ballot and to specify requirements for obtaining ballot access.29
She viewed the burden of public disclosure on speech and associational rights as minimal in this context because the process of legislating by referendum is inherently public.30 The act of signing typically occurs in public, and circulators who collect signatures ordinarily owe signers no guarantee of confidentiality.31 She concluded that any party attempting to challenge particular applications of the regulations will bear a heavy burden.32
Courts should be deeply skeptical of any assertion that the Constitution compels states to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.33
Justice Stevens concurred in part and in the judgment.34 He stated that this is not a hard case because it concerns a neutral nondiscriminatory policy of disclosing information already in the state's possession.35 The burden imposed by the PRA on referendum petitions is not substantial in the vast majority of its applications.36
He found the burden not substantial because the PRA does not prohibit expression, does not require that any person signing a petition disclose anything, and any effect on speech is minimal as the act of signing involves no interactive communication.37 He concluded that the state's antifraud interest is perfectly adequate.38 Any as-applied challenge would require a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures.39
Strong evidence is demanded before concluding that an indirect and speculative chain of events imposes a substantial burden on speech.40
Justice Scalia concurred in the judgment.41 He doubted whether signing a petition that has the effect of suspending a law fits within the freedom of speech at all.42 Even assuming it does, a long history of practice shows that the First Amendment does not prohibit public disclosure.43
He relied on the long history of public legislating and voting, including viva voce voting and open petitioning in townhall meetings, to reject any claim of constitutional anonymity.44 He noted that requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.45
Justice Alito agreed that the facial challenge fails.46 Many referendum petitions concern relatively uncontroversial matters, and plaintiffs provided no reason to think that disclosure of signatory information in those contexts would significantly chill the willingness of voters to sign.47 He stressed that as-applied exemptions must be available sufficiently far in advance to avoid chilling protected speech and without clearing a high evidentiary hurdle.48
Plaintiffs have a strong argument that the PRA violates the First Amendment as applied to the Referendum 71 petition.49 The widespread harassment suffered by supporters of California's Proposition 8 provides strong support for an as-applied exemption.50 The state's informational interest will not in any case be sufficient to trump First Amendment rights when harassment is threatened.51
Justice Thomas dissented.52 He contended that compelled disclosure of signed referendum petitions severely burdens political association protected by the First Amendment.53 Strict scrutiny applies to laws that compel disclosure of protected First Amendment association.54
He argued that the PRA is not narrowly tailored because Washington could use an electronic database allowing state employees to verify signatures and detect fraud without wholesale public disclosure.55 Existing observer provisions plus criminal penalties already protect the integrity of the referendum process.56 He concluded that on-demand public disclosure is unconstitutional in all applications because the strength of the state's interest and the signer's associational interest remain constant across all referendum topics.57