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Supreme Court Wary of Allowing Privacy in R-71 Case

The most vocal Supreme Court objector to keeping private the names of those who signed petitions in Referendum 71? Justice Antonin Scalia.

The SCOTUS blog reports: Scalia  

Justice Antonin Scalia, using history, sarcasm and political taunts, laid down a barrage of objections Wednesday to a plea that the Supreme Court create a new constitutional right of anonymity for individuals who sign petitions to get policy measures onto election ballots. When he was finished, the strong impression was that it might be exceedingly hard to gather a five-vote majority to establish such a right, even though the plea got the fervent support of Justice Samuel A. Alito, Jr., and some implied help from Chief Justice John G. Roberts, Jr. The oral argument was in John Doe # 1, et al., v. Reed, et al. (09-559).

Declaring that the rough-and-tumble of democracy is not for the faint-hearted, what Scalia referred to as the “touchy, feely” sensitivity of some political activists, the Justice said “you can’t run a democracy” with political activity behind a First Amendment shroud. “You are asking us to enter into a whole new field,” Scalia told James Bopp Jr., the lawyer for Washington State signers of an anti-gay rights petition. Politics, the Justice went on, “takes a certain amount of civic courage. The First Amendment does not protect you from civic discourse — or even from nasty phone calls.”

Some other weigh-ins, via the AP: R71  

Justice Ruth Bader Ginsburg noted that while Project Marriage Washington says it wants to keep the petition names anonymous, organizers of petitions often make the names public themselves by selling the names to other organizations and using them for fundraising. "So that would be the end of a person's privacy," she said.

Chief Justice John Roberts compared signing a petition to voting, saying a person's vote might be chilled if it was revealed which candidate they voted for. McKenna argued that chill would be no more significant than it is for having campaign contributions or voter registration disclosed.

Justice John Paul Stevens, listening to his final arguments before retiring later this summer, said there might be a public interest in seeing the names on a referendum petition to "identify people who have a particular point of view on a public issue."

"And if you have the other point of view, don't you have an interest in finding out who you would like to convince to change their minds?" Stevens said.

But Justice Samuel Alito questioned McKenna on whether his office was willing to give out the home address of its lawyers so people could show up and have "uncomfortable conversations" with them about issues in which they disagree.

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Comments

  1. Regarding Scalia's reported position: even a broken clock is right twice a day.

    Posted by: peterparker | Apr 28, 2010 5:21:53 PM


  2. Bigots should be proud of their bigotry.

    Posted by: jaragon | Apr 28, 2010 5:51:35 PM


  3. It's a right to free speech and association, not anonymous speech. The goal is to ward off corruption, which is a big problem with petitions.

    Posted by: anon | Apr 28, 2010 5:52:23 PM


  4. Oral arguments have become Kabuki. Roberts seriously comparing petitioning and voting and worrying about secrecy of the ballot? Seriously?

    Pffff... He and Alito ask the "conservative" questions while Scalia, who usually carries the rightist argument takes a breather from his usual rant about the scary "gay agenda" and appears (dare I say it?) sane for a change.

    It's all preprogrammed and arranged ahead of time. Just watch. Either this thing goes down in flames 9-0 AS IT SHOULD, or Scalia has a last minute change of heart and secrecy wins 5-4.

    Posted by: BobN | Apr 28, 2010 6:05:31 PM


  5. OMG. I agree with Antonin Scalia?!

    People have to be responsible for their opinions in a democracy. And people give up their privacy in so many ways in their daily lives without thinking about it. Magazine subscriptions can reveal someone's political stance on some issue, and how many people routinely ignore those privacy "opt-out" clauses (not that businesses apparently sell your information anyway).

    And, of course, cookies in your web browser.

    Posted by: latebrosus | Apr 28, 2010 6:20:51 PM


  6. I would definitely be surprised if this didn't go 9-0.

    I might think 8-1 with Thomas opposed for purely political reasons, but isn't he too lazy these days to (have his clerks) write a solo dissent? He'll begrudgingly sign on to the decision with everyone else.

    Don't allow this to make you overly optimistic about the marriage case working it's way up, though. The legal arguments are completely different.

    Posted by: Aaron Rowland | Apr 28, 2010 6:43:47 PM


  7. I never thought I would see the day and agree with a staunch conservative as Scalia!

    Posted by: Victor | Apr 28, 2010 8:01:56 PM


  8. I won't get my hopes up. This heterosexual supreme court stopped camera access in the Prop 8 trial because they "feared" violence.

    Posted by: Bill | Apr 28, 2010 8:55:24 PM


  9. Hell just froze over. I actually agree with Scalia...

    Posted by: Robert In WeHo | Apr 28, 2010 9:09:56 PM


  10. I, PeePee, don't understand the constitutional issues so I, PeePee, will insult someone who does!

    I, PeePee, am also still mad at Michael Stipe for ignoring me at a very fancy after-concert REM party!

    Did I, PeePee, mention I got invited to a fancy after-concert REM party? I, PeePee, did!

    Posted by: iPeePee | Apr 28, 2010 10:25:03 PM


  11. The chief justice compares revealing the names of people who sign electoral petitions to revealing how one voted?? What is he smoking? I want some.

    It's none of anyone's business HOW you voted, but it is public business IF you voted. We don't like to let people do it twice, except in Chicago and parts of the Bronx. You want all these "constitutional petitions" to be fraudulent? Keep the names secret and they will be. Apparently Logic 101 is not valued by the CJ.

    Posted by: JusticeontheRocks | Apr 28, 2010 11:09:38 PM


  12. My bet is 7-2 or 6-3. Roberts and Alito will put ideology and agenda above everything, even though Roberts just wrote the majority opinion that refused to pull certain speech out of First Amendment protection. Hard to tell about Thomas, though, because he doesn't open up ever on the bench. Does he go with Scalia here? Kennedy usually wants all the attention but seems like Scalia gets it here.

    Posted by: Patrick | Apr 28, 2010 11:29:25 PM


  13. i'm predicting the [now] usual 5-4, I don't care what Scalia is saying NOW. He will side with Alito et al.

    How Roberts can compare petition signing to actual voting is troubling to say the least. How does ANYONE know if there are actually 30,000 REAL people behind those signatures if they're kept secret? If you're proud enough to try to take away someone's rights, you should be proud enough to stand behind your decision or STFU and live and let live.

    Posted by: casey | Apr 29, 2010 12:24:04 AM


  14. Petitions and voting are apples and oranges. Signing a petition is more like legislating--the signers are taking the place of legislators in forming policy or laws. Voting is just an opportunity to agree or disagree with the proposed policy. Big difference.

    Posted by: Happily Married | Apr 29, 2010 1:15:26 AM


  15. Well, just because the signatures would be anonymous doesn't mean that they wouldn't be checked for authenticity by the State Secretary of State.

    That being said, allowing these signatures to be public information allows third-party organizations to further check the authenticity of the signatures. For example, in Mass many signers had been tricked into signing an anti-gay initiative when they had intended to sign a Wine initiative (they were told they had to "sign twice").

    KnowThyNeighbor.org (the group that published the signatures of anti-gay initiative petitions online and started this whole case) noticed all of the names that were on BOTH petitions, and contacted the individuals only to find out that a couple thousand had been tricked into signing the anti-gay initiative petition.

    But the issue is much bigger than this, of course. The initiative is a substitute for the traditional legislative process (that takes place in state legislatures). Just as the votes of our state congressmen are not anonymous, so also the individuals who are, in a sense, acting as congressmen should not be anonymous. You can't PROPOSE and QUALIFY state statutes without having to answer for that electoral involvement.

    Posted by: John | Apr 29, 2010 1:22:07 AM


  16. remember, this is the court that decided that money = speech, so i am (pleasantly) surprised that scalia would take this stance. scotus has been commandeered by pro-corporate and anti-populist interest groups since monsanto-owned, stepin fethchit, perv, judge clarence thomas was installed by bush sr. i don't predict a sea change anytime soon. however, i hope our obsequious president will take secure hold of the reins of this one.

    Posted by: nic | Apr 29, 2010 3:16:22 AM


  17. So much confusion here, it's hard to know where to begin.

    First, the issue isn't petitions, but ballot initiatives. Petitions are not a organized, government-proscribed part of the legislative process. Ballot initiatives are.

    Second, the issue cannot solely be the veracity of the signatures. There can be measures designed to safeguard the process without making all the signatures entirely public. No one will be convinced entirely by that argument, as there are other means of accomlishing that goal without revealing the signatures.

    Finally, Scalia is wrong. Think past this one issue, folks! If you want unpopular measures to reach the ballot, securing the privacy of those who participate in the ballot iniative process is absolutely vital. We do not want potential employers to be able to lord one's political participation over one's head far, far into the future. If you chose to SPEAK, then yes, you don't have a right to expect privacy, but you shouldn't have your participation in a government-sanctioned part of the legislative process (the ballot initiative) made public. It wasn't long ago that people suffered reprisals for their votes. Think about other issues you support and how you might not wish your support to be made public, and that may cast it in a different light.

    Posted by: Nate | Apr 29, 2010 4:34:43 AM


  18. Kind of an unusual stand for Scalia but one in which I'm in total agreement. If I support putting an issue on the ballot then I'm not ashamed to put my name on a petition and have that signature made public. If knowing in advance that your identity will be revealed stops you from advocating and supporting something your supposedly believe in then you've failed the most basic test of your conviction. Sunshine laws dictating release of information, such as petition signers, can actually reduce the amount of discourse by forcing people to think before they act. Many times people sign petitions under duress, false information or, heaven forbid, without reading or knowing what they are signing - possibly making these signatures available for review will cause people to be sure of what they are supporting before they affix their name. Basically if you're too ashamed to admit you support an issue then you need to reevaluate your values.

    Posted by: ChrisM | Apr 29, 2010 8:29:22 AM


  19. I think Scalia is not going to rule that anyone has a "right to privacy" since that would reinforce the Roe decision which he would like to overturn.

    As for your company knowing what petitions you signed, if they want that kind of information they can look at your internet history and listen in on your calls on your work phone. Most don't because most of what we do is just too boring to bother with.

    Posted by: Houndentenor | Apr 29, 2010 9:15:15 AM


  20. Clarence Thomas has all but pre-announced that he wants to keep the petitioners' names private. In the case of the cameras in the Prop 8 courtroom, he went out of his way to write a separate concurring opinion just so he could specifically mention Washington's R-71 as the privacy reasons for why witness testimony should not be on camera (even though their names were already part of the public record).

    Scalia, as conservative as he is, is a *legal* conservative. Roberts and Alito are much more *politically* conservative, included to vote based on who wins or loses rather than the legal principles at stake.

    If Scalia votes to allow the names to be public, I believe Kennedy almost certainly will as well.

    My guess is that it will be a 6-3 decision with Roberts, Alito, and Thomas voting in the minority to keep the names private, with the remaining 6 voting to make them public.

    Posted by: Grey | Apr 29, 2010 12:03:00 PM


  21. How would you all feel if the shoe were on the other foot? A pro-gay initiative in a jurisdiction where speaking up for it is so unpopular that people fear signing it?

    Posted by: Jay | Apr 29, 2010 6:19:22 PM


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