WASHINGTON, June 24, 2010 -- The Supreme Court ruled today that petition signers on state ballot referenda do not have a constitutional right to keep their names anonymous.
"We conclude that such disclosure does not, as a general matter, violate the First Amendment," wrote Chief Justice John Roberts for an 8-to-1 majority.
But Roberts left open the possibility that a court could, in some specific cases, review claims where disclosure requirements might subject some signatories to harassment or reprisal.
The case came to the court from Washington state after the group Protect Marriage Washington (PMW) organized a petition drive to place a referendum on the ballot to give voters the opportunity to repeal a state law that gave same-sex partners the same rights as married couples.
As the petition drive was organized, some supporters of the law warned they would use a Washington State Public Records Act to identify the names of those who had signed the petition in order to encourage "uncomfortable conversation."
Washington law requires signatories to produce their names and addresses so that election observers can verify the signatures. It also mandates the information is open for public release.
Lawyers for PMW filed suit in federal court, fearful that if the names were made public the signers could be subject to harassment and retaliation.
The court said today that public disclosure of the names "promotes transparency and accountability" in the electoral process. "Public disclosure of referendum petitions in general is substantially related to the important interest of preserving the integrity of the electoral process," Roberts wrote.
But the court said today's ruling concerned the broad disclosure of petition signers in all contexts.
"We note," Roberts wrote, "that upholding the law against a broad-based challenge does not foreclose a litigants' success in a narrower one."
Court Allows for Challenges to Disclosure if Harassment Alleged
Justice Samuel Alito, who agreed with the majority, went as far as suggesting that PMW could still challenge the release of the names based on the fact that it believes the petition signers might be subject to harassment and intimidation.
"To give speech the breathing room it needs to flourish, prompt judicial remedies must be available," he said.
James Bopp, the attorney for PMW, said on Thursday that "although the Supreme Court denied Protect Marriage Washington's request to keep petition signers' personal information private in all situations, the Court agreed with Protect Marriage Washington that people who sign a petition are exercising their First Amendment right to free speech and can act to protect their privacy when supporting traditional marriage."
Bert Gall, senior attorney at the Institute for Justice, who filed a brief in support of the petition signers, said, "Today's decision is confined to the narrow context of states protecting their election processes from fraud and mistake. We are heartened that the court will give the plaintiffs the chance to prove in a trial court that their first amendment rights have been violated."
First Amendment scholars say this case is a phenomenon of the Internet age which has vastly facilitated the ability to not only identify an individual but find out addresses, family information or employer.
"The Internet is a new component in this argument," said Gene Policinski of the First Amendment Center. "In the past your name was very often public, but there wasn't the ease with which you could be targeted on the basis of where you live or work, which is very easily done now in an era of Google maps, face book pages and the rest."
Nearly half of the states filed a brief in support of the public records act in Washington state arguing that public records acts are essential to the prevention of election fraud and the promotion of open government.