Steve Simpson, a senior attorney at the Institute for Justice, has a thoughtful commentary on the recent Supreme Court ruling concerning public disclosure of the names of those who sign petitions:
… When the case was decided by the Supreme Court, the issue in Doe was whether the First Amendment prevented Washington state from publicly disclosing the identities of those who signed petitions to place Referendum 71 on the ballot. On the heels of the battle over Proposition 8 in California, the plaintiff in Doe was concerned that if the signatures were released, those who supported placing the referendum on the ballot would suffer harassment and intimidation. The Court addressed the issue narrowly, construing the challenge as a facial attack on the state’s authority to require the disclosure of petition signatures at all. Applying precedents that established the state’s wide latitude to prevent fraud in elections, the Supreme Court concluded that disclosing the petitions was a legitimate means of verifying signatures. Disclosure in this context, according to the Court, would allow members of the public to essentially verify the state’s verification, and thus help identify any invalid signatures.
There may have been some sense to the Court’s position if we lived at a time when election officials laboriously pored over long lists of petition signatures by hand. However, as Justice Clarence Thomas pointed out in dissent, in the modern era, this sort of thing is typically done by computer. Indeed, by the time the case reached the high court, the state had performed its normal verification process with little difficulty. The groups that sought the petition signatures did not seem interested in verifying signatures after the fact. In fact, two of them intended to post signers’ identities on the Internet so others could confront them about their views on same-sex marriage. Justice Thomas thus rejected the majority’s rationale for disclosure, and would have struck down the law allowing public disclosure as a violation of the right to free speech and association.
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