The U.S. Supreme Court ruled last week that those who sign initiative petitions have no First Amendment right to anonymity in doing so. Despite arguments that public disclosure of one’s having signed a petition puts that person at risk of exposure to retaliatory harassment and threats, if not more substantial consequences, and thereby chills the exercise of the First Amendment petitioning right, the court concluded to the contrary.
It reasoned that — in general, with some exceptions possible in particular circumstances — the public watchdog enabling function of disclosing signatures was a sufficiently important public interest to outweigh signers’ anonymity preferences.
As stated in the decision’s syllabus:
The [Washington] State’s interest in preserving the integrity of the electoral process suffices to defeat the argument that [its Public Records Act[ is unconstitutional with respect to referendum petitions in general.
That interest is particularly strong with respect to efforts to root out fraud. But the State’s interest is not limited to combating fraud; it 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. The State’s interest also extends more generally to promoting transparency and accountability in the electoral process.
Plaintiffs contend that disclosure is not sufficiently related to the interest of protecting the integrity of the electoral process to withstand First Amendment scrutiny.
They argue that disclosure is not necessary because the secretary of state is already charged with verifying and canvassing the names on a petition, a measure’s advocates and opponents can observe that process, any citizen can challenge the secretary’s actions in court, and criminal penalties reduce the danger of fraud in the petition process. But the secretary’s verification and canvassing will not catch all the invalid signatures, and public disclosure can help cure the inadequacies of the secretary’s process.
Disclosure also helps prevent difficult-to-detect fraud such as outright forgery and “bait and switch” fraud, in which an individual signs the petition based on a misrepresentation of the underlying issue. And disclosure promotes transparency and accountability in the electoral process to an extent other measures cannot. (Doe v. Reed, 561 U. S. ____ (2010), slip opinion, p.3; emphasis added)
The decision will have little effect in California, where the names of those who petition to put measures on the ballot for an initiative or referendum or to recall public officials, are exempt from disclosure under the Public Records Act (see Government Code Section 6253.5).
The Proposition 8 supporters widely reported to have experienced harassment were exposed not because of their petition signatures but because they contributed $500 or more to a campaign to get the measure passed. That level of financial support does get one’s name on the public record here, but signing a petition does not.
But the italicized language from the court shows rare support at the highest level for what might be called the informed grassroots checking function — the concept that exposing the administration of elections to everyman’s kibitzing inspection over the shoulders of the responsible officials is an important insurance against intentional or inadvertent corruption of the process.
Transparency may not be a sufficient condition for the disinfectant effect of sunlight, but it is a necessary one.
This conviction is precisely why the high court concluded a generation ago (Richmond Newspapers v. Virginia, 448 US 555 (1980)) that keeping courtroom doors and records open to public observers in criminal prosecutions is mandated by the First Amendment: to equip citizens to apply and report their scrutiny of the administration of justice — and thereby keep it fair, unbiased and honest.
It thus becomes reasonable to ask: If the U.S. Supreme Court recognizes the integrity of the petitioning process as arguably too important to be left to public officials alone, has the time now arrived for the California Legislature to revisit the need to keep petition signatures secret?
Terry Francke is Voice of OC’s open government consultant and general counsel for Californians Aware. You can reach him directly at terry@calaware.org. And add your voice with a letter to the editor.