Doe v. Reed, Washington Secretary of State (2010)

Vote: 8 (Alito, Breyer, Ginsburg, Kennedy, Roberts, Scalia, Sotomayor, Stevens)
1 (Thomas)

Opinion of the Court: Roberts
Concurring Opinions: Alito, Breyer, Sotomayor
Opinion Concurring in Part and Concurring in the Judgment: Stevens
Opinion Concurring in the Judgment: Scalia
Dissenting Opinion: Thomas


The Washington Constitution allows citizens to challenge state laws by referendum. To initiate a referendum, proponents must file a petition with the secretary of state that contains the signatures of registered Washington voters equal to or exceeding 4 percent of the votes cast for governor at the last gubernatorial election. A valid submission requires not only a signature, but also the signer's address and the county in which he or she is registered to vote.

In May 2009, the state enacted a law that expanded the rights of state-registered domestic partners, including same-sex domestic partners. That same month, Protect Marriage Washington, one of the petitioners in this case, was organized as a "State Political Committee" for the purpose of collecting the petition signatures necessary to place a referendum challenging the law on the ballot. If the referendum made it onto the ballot, Protect Marriage Washington planned to encourage voters to reject the law. Protect Marriage Washington submitted the petition with more than 137,000 signatures to the secretary of state, and after conducting the verification process required by state law, the secretary determined that the petition contained sufficient signatures to qualify the referendum (called R-71) for the ballot. Respondents invoked the Washington Public Records Act (PRA) to obtain copies of the petition, which contained the signers' names and addresses.

The R-71 sponsor and some of the signers filed suit in a federal district court seeking to stop the public release of the petition. They argued that the PRA "is unconstitutional as applied to the Referendum 71 petition because there is a reasonable probability that the signatories . . . will be subjected to threats, harassment, and reprisals.”



. . . The issue at this stage of the case is not whether disclosure of this particular petition would violate the First Amendment, but whether disclosure of referendum petitions in general would do so. We conclude that such disclosure does not as a general matter violate the First Amendment, and we therefore affirm the judgment of the Court of Appeals. . . .

The compelled disclosure of signatory information on referendum petitions is subject to review under the First Amendment. An individual expresses a view on a political matter when he signs a petition under Washington's referendum procedure. In most cases, the individual's signature will express the view that the law subject to the petition should be overturned. Even if the signer is agnostic as to the merits of the underlying law, his signature still expresses the political view that the question should be considered "by the whole electorate." In either case, the expression of a political view implicates a First Amendment right. The State, having "cho[sen] to tap the energy and the legitimizing power of the democratic process, . . . must accord the participants in that process the First Amendment rights that attach to their roles." Republican Party of Minn. v. White (2002).

Respondents counter that signing a petition is a legally operative legislative act and therefore "does not involve any significant expressive element." It is true that signing a referendum petition may ultimately have the legal consequence of requiring the secretary of state to place the referendum on the ballot. But we do not see how adding such legal effect to an expressive activity somehow deprives that activity of its expressive component, taking it outside the scope of the First Amendment. Respondents themselves implicitly recognize that the signature expresses a particular viewpoint, arguing that one purpose served by disclosure is to allow the public to engage signers in a debate on the merits of the underlying law. . . .

We have a series of precedents considering First Amendment challenges to disclosure requirements in the electoral context. These precedents have reviewed such challenges under what has been termed "exacting scrutiny." That standard "requires a 'substantial relation' between the disclosure requirement and a 'sufficiently important' governmental interest." To withstand this scrutiny, "the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights."

Respondents assert two interests to justify the burdens of compelled disclosure under the PRA on First Amendment rights: (1) preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability; and (2) providing information to the electorate about who supports the petition. Because we determine that the State's interest in preserving the integrity of the electoral process suffices to defeat the argument that the PRA is unconstitutional with respect to referendum petitions in general, we need not, and do not, address the State's "informational" interest.

The State's interest in preserving the integrity of the electoral process is undoubtedly important. "States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally." The State's interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It "drives honest citizens out of the democratic process and breeds distrust of our government." Purcell v. Gonzalez (2006). The threat of fraud in this context is not merely hypothetical; respondents and their amici cite a number of cases of petition-related fraud across the country to support the point.

But the State's interest in preserving electoral integrity is not limited to combating fraud. That interest extends to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State. That interest also extends more generally to promoting transparency and accountability in the electoral process, which the State argues is "essential to the proper functioning of a democracy."

Plaintiffs contend that the disclosure requirements of the PRA are not "sufficiently related" to the interest of protecting the integrity of the electoral process. They argue that disclosure is not necessary because the secretary of state is already charged with verifying and canvassing the names on a petition, advocates and opponents of a measure can observe that process, and any citizen can challenge the secretary's actions in court. They also stress that existing criminal penalties reduce the danger of fraud in the petition process.

But the secretary's verification and canvassing will not catch all invalid signatures: The job is large and difficult . . . and the secretary can make mistakes, too[.] Public disclosure can help cure the inadequacies of the verification and canvassing process.

Disclosure also helps prevent certain types of petition fraud otherwise difficult to detect, such as outright forgery and "bait and switch" fraud, in which an individual signs the petition based on a misrepresentation of the underlying issue. The signer is in the best position to detect these types of fraud, and public disclosure can bring the issue to the signer's attention.

Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures. Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot. In light of the foregoing, we reject plaintiffs' argument and conclude that public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process.

Plaintiffs' more significant objection is that "the strength of the governmental interest" does not "reflect the seriousness of the actual burden on First Amendment rights." According to plaintiffs, the objective of those seeking disclosure of the R-71 petition is not to prevent fraud, but to publicly identify those who had validly signed and to broadcast the signers' political views on the subject of the petition. Plaintiffs allege, for example, that several groups plan to post the petitions in searchable form on the Internet, and then encourage other citizens to seek out the R-71 signers.

Plaintiffs explain that once on the Internet, the petition signers' names and addresses "can be combined with publicly available phone numbers and maps," in what will effectively become a blueprint for harassment and intimidation. To support their claim that they will be subject to reprisals, plaintiffs cite examples from the history of a similar proposition in California and from the experience of one of the petition sponsors in this case[.]

In related contexts, we have explained that those resisting disclosure can prevail under the First Amendment if they can show "a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties." The question before us, however, is not whether PRA disclosure violates the First Amendment with respect to those who signed the R-71 petition, or other particularly controversial petitions. The question instead is whether such disclosure in general violates the First Amendment rights of those who sign referendum petitions.

The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R-71 petition, or on similarly controversial ones. But typical referendum petitions "concern tax policy, revenue, budget, or other state law issues.". . . Voters care about such issues, some quite deeply—but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case. . . .

We conclude that disclosure under the PRA would not violate the First Amendment with respect to referendum petitions in general. . . .



In circumstances where, as here, "a law significantly implicates competing constitutionally protected interests in complex ways," the Court balances interests. "And in practice that has meant asking whether the statute burdens any one such interest in a manner out of proportion to the statute's salutary effects upon the others." As I read their opinions, this is what both the Court and Justice Stevens do. And for the reasons stated in those opinions (as well as many of the reasons discussed by Justice Sotomayor), I would uphold the statute challenged in this case. With this understanding, I join the opinion of the Court and Justice Stevens' opinion.


The Court holds that the disclosure under the Washington Public Records Act (PRA) of the names and addresses of persons who sign referendum petitions does not as a general matter violate the First Amendment, and I agree with that conclusion. Many referendum petitions concern relatively uncontroversial matters, and plaintiffs have provided no reason to think that disclosure of signatory information in those contexts would significantly chill the willingness of voters to sign. Plaintiffs' facial challenge therefore must fail.

Nonetheless, facially valid disclosure requirements can impose heavy burdens on First Amendment rights in individual cases. Acknowledging that reality, we have long held that speakers can obtain as-applied exemptions from disclosure requirements if they can show "a reasonable probability that the compelled disclosure of [personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties." Buckley v. Valeo (1976). . . .

The possibility of prevailing in an as-applied challenge provides adequate protection for First Amendment rights only if (1) speakers can obtain the exemption sufficiently far in advance to avoid chilling protected speech and (2) the showing necessary to obtain the exemption is not overly burdensome. With respect to the first requirement, the as-applied exemption becomes practically worthless if speakers cannot obtain the exemption quickly and well in advance of speaking. To avoid the possibility that a disclosure requirement might chill the willingness of voters to sign a referendum petition (and thus burden a circulator's ability to collect the necessary number of signatures), voters must have some assurance at the time when they are presented with the petition that their names and identifying information will not be released to the public. . . .

Additionally, speakers must be able to obtain an as-applied exemption without clearing a high evidentiary hurdle. We acknowledged as much in Buckley, where we noted that "unduly strict requirements of proof could impose a heavy burden" on speech. Recognizing that speakers "must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim," we emphasized that speakers "need show only a reasonable probability" that disclosure will lead to threats, harassment, or reprisals.

In light of those principles, the plaintiffs in this case have a strong argument that the PRA violates the First Amendment as applied to the Referendum 71 petition. . . .



I write separately to emphasize a point implicit in the opinion of the Court and the concurring opinions of Justice Stevens,Justice Scalia, and Justice Breyer: In assessing the countervailing interests at stake in this case, we must be mindful of the character of initiatives and referenda. These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action. States enjoy "considerable leeway" to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access. As the Court properly recognizes, each of these structural decisions "inevitably affects—at least to some degree—the individual's right" to speak about political issues and "to associate with others for political ends." For instance, requiring petition signers to be registered voters or to use their real names no doubt limits the ability or willingness of some individuals to undertake the expressive act of signing a petition. Regulations of this nature, however, stand "a step removed from the communicative aspect of petitioning," and the ability of States to impose them can scarcely be doubted. It is by no means necessary for a State to prove that such "reasonable, nondiscriminatory restrictions" are narrowly tailored to its interests. . . .

I view the burden of public disclosure on speech and associational rights as minimal in this context. As this Court has observed with respect to campaign-finance regulations, "disclosure requirements . . . do not prevent anyone from speaking." When it comes to initiatives and referenda, the impact of public disclosure on expressive interests is even more attenuated. While campaign-finance disclosure injects the government into what would otherwise have been private political activity, the process of legislating by referendum is inherently public. To qualify a referendum for the ballot, citizens are required to sign a petition and supply identifying information to the State. The act of signing typically occurs in public, and the circulators who collect and submit signatures ordinarily owe signers no guarantee of confidentiality. For persons with the "civic courage" to participate in this process, the State's decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing. Disclosure of the identity of petition signers, moreover, in no way directly impairs the ability of anyone to speak and associate for political ends either publicly or privately.

Given the relative weight of the interests at stake and the traditionally public nature of initiative and referendum processes, the Court rightly rejects petitioners' constitutional challenge to the State of Washington's petition disclosure regulations. These same considerations also mean that any party attempting to challenge particular applications of the State's regulations will bear a heavy burden. . . .



This is not a hard case. It is not about a restriction on voting or on speech and does not involve a classic disclosure requirement. Rather, the case concerns a neutral, nondiscriminatory policy of disclosing information already in the State's possession that, it has been alleged, might one day indirectly burden petition signatories. The burden imposed by Washington's application of the Public Records Act (PRA) to referendum petitions in the vast majority, if not all, its applications is not substantial. And the State has given a more than adequate justification for its choice. . . .



. . . Plaintiffs contend that disclosure of the names, and other personal information included on the petitions, of those who took this legislative action violates their First Amendment right to anonymity. Today's opinion acknowledges such a right, finding that it can be denied here only because of the State's interest in "preserving the integrity of the electoral process." In my view this is not a matter for judicial interest-balancing. Our Nation's longstanding traditions of legislating and voting in public refute the claim that the First Amendment accords a right to anonymity in the performance of an act with governmental effect. "A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality." McIntyre [v. Ohio Elections Comm’n (1995)].

When a Washington voter signs a referendum petition subject to the PRA, he is acting as a legislator. The Washington Constitution vests "[t]he legislative authority" of the State in the legislature, but "the people reserve to themselves the power . . . to approve or reject at the polls any act, item, section, or part of any bill, act, or law passed by the legislature.". . .

Plaintiffs point to no precedent from this Court holding that legislating is protected by the First Amendment. Nor do they identify historical evidence demonstrating that "the freedom of speech" the First Amendment codified encompassed a right to legislate without public disclosure. This should come as no surprise; the exercise of lawmaking power in the United States has traditionally been public.

The public nature of federal lawmaking is constitutionally required. Article I, §5, cl. 3 requires Congress to legislate in public: "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal." State constitutions enacted around the time of the founding had similar provisions. . . .

Moreover, even when the people asked Congress for legislative changes—by exercising their constitutional right "to petition the Government for a redress of grievances," U.S. Const., Amdt. 1—they did so publicly. The petition was read aloud in Congress. The petitioner's name (when large groups were not involved), his request, and what action Congress had taken on the petition were consistently recorded in the House and Senate Journals. Even when the people exercised legislative power directly, they did so not anonymously, but openly in town hall meetings.

Petitioning the government and participating in the traditional town meeting were precursors of the modern initiative and referendum. . . . Legislating was not the only governmental act that was public in America. Voting was public until 1888 when the States began to adopt the Australian secret ballot. We have acknowledged the existence of a First Amendment interest in voting, but we have never said that it includes the right to vote anonymously. . . .

The long history of public legislating and voting contradicts plaintiffs' claim that disclosure of petition signatures having legislative effect violates the First Amendment. As I said in McIntyre, "[w]here the meaning of a constitutional text (such as 'the freedom of speech') is unclear, the widespread and long-accepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine." Just as the century-old practice of States' prohibiting anonymous electioneering was sufficient for me to reject the First Amendment claim to anonymity in McIntyre, the many-centuries-old practices of public legislating and voting are sufficient for me to reject plaintiffs' claim.

Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today's opinion does) that it can only be avoided by the demonstration of a "sufficiently important governmental interest." And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.



Just as "[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy," so too is citizen participation in those processes, which necessarily entails political speech and association under the First Amendment. In my view, compelled disclosure of signed referendum and initiative petitions under the Washington Public Records Act (PRA) severely burdens those rights and chills citizen participation in the referendum process. Given those burdens, I would hold that Washington's decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process. I respectfully dissent. . . .

The Court correctly concludes that "an individual expresses" a "political view" by signing a referendum petition. The Court also rightly rejects the baseless argument that such expressive activity falls "outside the scope of the First Amendment" merely because "it has legal effect in the electoral process." Yet, the Court does not acknowledge the full constitutional implications of these conclusions.

The expressive political activity of signing a referendum petition is a paradigmatic example of "the practice of persons sharing common views banding together to achieve a common end." Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley (1981). A referendum supported by only one person's signature is a nullity; it will never be placed on the ballot. The Doe petitioners recognized as much when they—and more than 120,000 other Washingtonians—joined with petitioner Protect Marriage Washington . . . to effect Protect Marriage Washington's "major purpose" of collecting enough valid signatures to place Referendum 71 on the general election ballot. For these reasons, signing a referendum petition amounts to "political association" protected by the First Amendment.

This Court has long recognized the "vital relationship between" political association "and privacy in one's associations,"NAACP v. Alabama ex rel. Patterson (1958), and held that "[t]he Constitution protects against the compelled disclosure of political associations and beliefs," Brown v. Socialist Workers '74 Campaign Comm. (Ohio) (1982). This constitutional protection "yield[s] only to a subordinating interest of the State that is compelling, and then only if there is a substantial relation between the information sought and an overriding and compelling state interest." Thus, unlike the Court, I read our precedents to require application of strict scrutiny to laws that compel disclosure of protected First Amendment association. Under that standard, a disclosure requirement passes constitutional muster only if it is narrowly tailored—i.e., the least restrictive means—to serve a compelling state interest.

Washington's application of the PRA to a referendum petition does not survive strict scrutiny.

Washington first contends that it has a compelling interest in "transparency and accountability," which it claims encompasses several subordinate interests: preserving the integrity of its election process, preventing corruption, deterring fraud, and correcting mistakes by the secretary of state or by petition signers.

It is true that a State has a substantial interest in regulating its referendum and initiative processes "to protect the[ir] integrity and reliability." But Washington points to no precedent from this Court recognizing "correcting errors" as a distinct compelling interest that could support disclosure regulations. And our cases strongly suggest that preventing corruption and deterring fraud bear less weight in this particular electoral context: the signature-gathering stage of a referendum or initiative drive. . . . [But, even] assuming the interest is compelling, on-demand disclosure of a referendum petition to any person under the PRA is "a blunderbuss approach" to furthering that interest.

As Washington explained during oral argument, after the secretary of state receives signed referendum petitions, his "first step . . . is to take them to his archiving section and to have them digitized. As soon as they're digitized, they're available on disks for anyone who requests them" under the PRA. . . . There is no apparent reason why Washington must broadly disclose referendum signers' names and addresses in this manner to vindicate the interest that it invokes here. Washington—which is in possession of that information because of referendum regulations that petitioners do not challenge—could put the names and addresses of referendum signers into a similar electronic database that state employees could searchwithout subjecting the name and address of each signer to wholesale public disclosure. The secretary could electronically cross-reference the referendum database against the "statewide voter registration list" contained in Washington's "statewide voter registration database," to ensure that each referendum signer meets Washington's residency and voter registration requirements. . . .

It is readily apparent that Washington can vindicate its stated interest in "transparency and accountability" through a number of more narrowly tailored means than wholesale public disclosure. Accordingly, this interest cannot justify applying the PRA to a referendum petition. . . .

Because the strength of Washington's interest in transparency and a signer's individual First Amendment interest in privacy of political association remain constant across all referendum topics, and because less restrictive means to protect the integrity of the referendum process are not topic specific, I would hold that on-demand public disclosure of referendum petitions under the PRA is not narrowly tailored for any referendum. . . .