IJ Asks U.S. Supreme Court to Protect Free Speech & Privacy Rights of Petition Signers In Mandatory Disclosure Laws Case

J. Justin Wilson
J. Justin Wilson · March 5, 2010

Arlington, Va.—Can the government publicly disclose a person’s name, home address, signature and other personal information, solely because that individual signed a petition to place a referendum on the ballot?  This week, the Institute for Justice filed a friend-of-the-court brief with the U.S. Supreme Court in Doe v. Reed arguing that the government cannot disclose such personal information without violating the First Amendment.  This case is one of the first Supreme Court cases to address the constitutionality of mandatory disclosure laws in the context of ballot measures—as opposed to candidates.  The Supreme Court will hear argument on April 28, 2010.  The Institute’s brief is available at http://www.ij.org/WAdisclosureAmicus.

Like many other states, Washington provides for citizen-initiated ballot measures and referenda as a key feature of its form of self-government.  The right to participate in that process—including the right to sign a petition to place a referendum on the ballot—lies at the heart of the First Amendment’s protection.  Yet, Washington State threatens to seriously curtail this right by reversing nearly 70 years of its own practice and publicly releasing the names, addresses and other personal information of more than 138,000 individuals who signed a referendum petition.

According to IJ President and General Counsel Chip Mellor, “The chilling effect of compelled disclosure on free speech has not only been recognized by the Supreme Court in a long line of cases, but it has also been recently documented.”  The Institute for Justice has published two research studies that identify the costs and burdens imposed by campaign-finance disclosure requirements.  One study found that three-out-of-five people would think twice about donating to a ballot-issue campaign if the state required public disclosure of their names and addresses.  When asked about the reasons for this hesitancy, people expressed a desire for anonymity and privacy as well as concern over a variety of potential repercussions, such as fear for personal safety, identity theft and loss of employment.

“The fear of intimidation, harassment and reprisal is by no means hypothetical as demonstrated by the recent events in California with Prop 8,” said Steve Simpson, a senior attorney at the Institute for Justice.  “In California, both supporters and opponents of a state referendum scoured the disclosure rolls to identify and harass individuals and businesses through death threats, physical violence, vandalism and economic retaliation.  Several groups in Washington have announced plans to post the personal information of petition signers on the Internet, a move that would encourage, or at least facilitate, such intimidation tactics.”

Proponents assert that mandatory disclosure laws are necessary to prevent fraud and improve voter information.  However, Robert Frommer, a staff attorney at the Institute for Justice, noted “There is no evidence that publicly disclosing the name and address of every individual to sign a petition serves those interests.”  Washington State already has an adequate process in place that has for years allowed its Secretary of State to verify petition signatures and guarantee the integrity of elections.  Washington even allows a limited number of supporters and opponents of the referendum petition to observe the verification process.  Notably, the state-mandated process specifically prohibits observers from recording the names, addresses and other personal information on the petition.  Additionally, Frommer observes that the asserted justification of informing voters “boils down to little more than the bare desire to know who is supporting what side of an issue.”

The Institute for Justice vigorously defends the right of individuals to engage in political speech and challenges campaign finance laws nationwide.  IJ filed friend-of-the-court briefs in other important campaign finance cases, including Citizens United v. FEC, FEC v. Wisconsin Right to Life and McConnell v. FEC.  IJ is currently challenging laws in Colorado that suppress speech about ballot issues by grassroots groups as well as Arizona’s “Clean Elections” law that funds political campaigns with taxpayer dollars.  For more information, visit www.ij.org/FirstAmendment.