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Federal Judge Temporarily Restrains Release of Names of Anti-Domestic-Partnership Petition Signers in Washington States:

The decision, in Doe v. Reed, was just handed down yesterday, and is based on the signers' First Amendment rights to speak anonymously; the decision basically keeps in place the temporary restraining order handed down July 29, but is accompanied with a detailed opinion containing the court's reasoning.

That reasoning strikes me as unpersuasive, for the same reasons I mentioned in late July; I don't think that secrecy of signatures is constitutionally mandated by the First Amendment, just as I don't think that a secret ballot is constitutionally mandated by the First Amendment. True, the anonymous speech precedents bar the government from requiring that people sign their political statements. But political statements are just speech. Signing an initiative, referendum, or recall petition is a legally operative act — it helps achieve a particular result not just because of its persuasiveness, but because it is given legal effect by the state election law.

The government is surely entitled to require that people who want their signature to have such a legally operative effect must disclose their identities to the government. And I see no reason why the government might not then disclose those identities to the public, who after all are in charge of the government. To do that is to inform the people about who is taking legally operative steps to change the state's laws (or the state's elected representatives, in the case of a recall).

Informing the public about this might well deter such legally operative acts, though of course leaving people free simply to engage in persuasive speech, which can indeed generally be done anonymously rather than in legally significant signing of petitions. But I don't think that deterrence is unconstitutional, especially since the legal significance of the signature is there only because state law creates it. Even overt government condemnation of certain speakers is not a First Amendment violation, though such condemnation might deter speakers. The same is even more true, I think, of a simple release of over 100,000 names, though again I can't deny that there would be a deterrent effect.

I agree that there are plausible plausible arguments that voter signatures shouldn't be publicly released by the government. Just as we have a secret ballot for the ultimate votes, we could have at least a quasi-secret signature system for the signing of referendum, initiative, recall, and candidate nomination petitions. Both an election and a threshold signature requirement to put something on an election are generally aimed at accurately measuring public opinion. Such an accurate measurement is much more likely if the measurement is undistorted by people's fear of being attacked, fired, ostracized, or even annoyed by those who disagree with them.

To be sure, unlike with a secret ballot, a petition signature would not be fully secret -— for instance, the government would know what you signed, though it doesn't know how you voted, and it's possible that the signatures would be briefly visible as other people are signing the petitions (though that could be minimized, for instance if there's just one signature per page, and each page is concealed after it's signed). But there are good reasons why we might choose to make it as close to a secret ballot as possible.

Still, the judgment about how secret signatures or even ballots should be is a judgment that should be made legislatively (or by voter initiative). The First Amendment and First Amendment caselaw does not preclude either option, and the court's opinion here doesn't persuade me to the contrary.

ruuffles (mail) (www):
They should have just circulated a second petition at the same time, this one to make the signatures on all petitions private. Wouldn't that have strengthened the case for an injunction?
9.11.2009 10:05am
Some dude:
Another reason government-by-petition is a bad idea.
9.11.2009 10:23am
Andy Rozell (mail):

I can see why the public (including pain-in-the-neck advocacy groups of all stripes) should be allowed to know who signed petitions. The real problem is the use that some people and organizations make of that information to intimidate and harass petition signers. To me the problem seems similar to voter intimidation.

A better way to deal with this might be to have laws addressing attempts to harass or bully people who sign petitions.
9.11.2009 10:32am
Steve P. (mail):
A better way to deal with this might be to have laws addressing attempts to harass or bully people who sign petitions.

If you're talking about physical bullying, then there already are laws covering that. If you're talking about people saying mean things, though, I think that's covered by the First Amendment.
9.11.2009 10:57am
Randy R. (mail):
IT's interesting that we have recently seen town hall meetings across the country in which people have likened Obama to Hitler and been very disruptive. They have done this all very publicly, and yet I don't know any instance in which any of these people have been harassed or intimadated. In fact, it is these people who are doing the harassing!

That doesn't mean that if these names are released no one will ever be harassed. The bigger problem is that if the names are released, you will likely be bombarded by special interests groups asking you for money.
9.11.2009 10:58am
mf24 (mail):
Kenneth Gladney might have something to say to Randy R.
9.11.2009 11:02am
rick.felt:
They have done this all very publicly, and yet I don't know any instance in which any of these people have been harassed or intimadated.

Harassed? No. Intimidated? Nah. Finger bitten off? Yes.
9.11.2009 11:06am
ruuffles (mail) (www):

Harassed? No. Intimidated? Nah. Finger bitten off? Yes.

He was punched first. So I take it you want him to use a firearm in defense instead of biting?
9.11.2009 11:10am
Smooth, Like a Rhapsody (mail):
This may be addressed in the arguments, but how do we authenticate the signatures if we do not publicize them?
Before a person can vote there is a rather strict identification process.
How do we know that people are not making up names; or signing the same petition multiple times with different names?
9.11.2009 11:22am
Randy R. (mail):
Or that people signed the petition thinking it was for something else entirely? That has been known to happen, especialy with some groups that intentionally mislead people.
9.11.2009 11:30am
Mr L (mail):
Andy: Unfortunately, there's the issue of enforcement. If I drop someone's contact info on the internet and people all over the country 'coincidentally' decide to slam their inbox, order pizzas and magazine subscriptions, and make vulgar calls at all hours there's not a hell of a lot local law enforcement can do...assuming they even want to. I really doubt San Francisco PD would spend much effort investigating even serious cases of harassment.

That's the point, really.

Randy: On the other hand, Joe 'the Plumber' Wurzelbacher's personal information was improperly accessed more than a dozen times by Ohio state employees in the first 24 hours after the debates - to say nothing of government workers outside of Ohio and the private sector. He was fired from his job and received harassing phone calls and death threats.

Oh, and I highly doubt the reason that pro-GM groups want the release of these names is to help anti-GM fundraising.
9.11.2009 11:31am
Andy Rozell (mail):
Aren't there laws that specifically target voter intimidation?
Isn't this a similar problem?

Of course, enforcement of any law is always a question.

But on the other hand, as I understand it, there are some limits to who can sign an initiative petition. (We don't have initiative in Texas, so I'm not sure how it works.)
But shouldn't people who oppose a ballot initiative have the ability to find out whether the correct number of qualified people signed it? To me, opposing that seems about like opposing an identification requirement at the polls, which I think should be required.

As to Joe the Plumber, couldn't state employees who accessed his information be charged with Official Oppression? (that's an offense in Texas, I don't know if it is elsewhere)
9.11.2009 11:45am
David Walser:
I agree that the states should be permitted to release the names of petition signers. I think the best constitutional argument is that the release of names might "chill" this form of speech.

Having said that, I think the the court got the public policy question right. While I think the public policy answer is right, I don't feel comfortable using the courts to achieve that result.
9.11.2009 11:48am
Adam B. (www):
The court claims here -- and I hadn't seen this before -- that the SecState's office itself canvasses the names to determine and detect fraud. How vigorous is that process?
9.11.2009 12:19pm
David Walser:
...But shouldn't people who oppose a ballot initiative have the ability to find out whether the correct number of qualified people signed it? To me, opposing that seems about like opposing an identification requirement at the polls, which I think should be required. ...


Yes, people who oppose a ballot initiative should have the ability to challenge the validity of the signatures on a petition. Each state that allows initiatives provides its own procedures, but in general, it works like this: the petitions are delivered to the Secretary of State's office (or the proper office for that particular state) and the state tabulates the number of signatures and does a preliminary audit to verify the signatures' validity. (That is, they take a sample of signatures and compare them (and the data associated with the signature, such as the person's address) to the state's registered voter rolls. Based on the audit, the state determines how likely it is that the petition has met the requirement for putting the matter on the ballot. The state might then announce that it planned to certify the measure for the ballot and opponents would have an opportunity to look at the signatures (and the related data) to try an invalidate enough signatures to keep the matter off the ballot. However, if the state's audit determined an error rate of only 10% and the petition has 1 million signatures for an initiative that only needs 500,000 valid signatures to make it on the ballot, the opponents of the measure might not waste any effort in trying to invalidate the signatures. Instead, opponents might feel their resources are better spent trying to invalidate the measure because it doesn't meet some other requirement for being on the ballot -- such as the measure's dealing with more than one issue.

Access to the signatures for validation purposes was NOT the issue before the court. Instead, opponents of the measure wanted access to the signatures so they could build a computer search-able database -- allowing anyone with internet access the ability to determine who in their neighborhood had signed the petition. Opponents claim their purpose was merely to facilitate civil conversations about the same sex marriage. The court held that the signatures could be disclosed for validation purposes only.
9.11.2009 12:41pm
Guest12345:

How vigorous is that process?


Who cares? The petition merely puts the issue on the ballot. Its integrity doesn't even need to be in the same ballpark as an election.
9.11.2009 12:46pm
Soronel Haetir (mail):

How do we know that people are not making up names; or signing the same petition multiple times with different names?




The court claims here -- and I hadn't seen this before -- that the SecState's office itself canvasses the names to determine and detect fraud. How vigorous
is that process?


The second quote answers the first. As to how vigorous, given how poor even experts are at signature matching with just two samples I doubt they do a very good job. I imagine the SoS office does a better job of finding ineligible signatures (out of jurisdiction, too young, whatever) than they do at catching fraudulent signatures of people who are in fact registered.
9.11.2009 12:47pm
David Walser:
The court claims here -- and I hadn't seen this before -- that the SecState's office itself canvasses the names to determine and detect fraud. How vigorous is that process?



It depends on the state and the individual office holder. Here in Arizona, I knew the then Secretary of State about 20 years ago. He took the responsibility very seriously. (Running elections was just about his only job.) His staff used audit sampling techniques to validate signatures. It was prohibitively expensive to check each and every signature.
9.11.2009 12:48pm
NowMDJD (mail):

A better way to deal with this might be to have laws addressing attempts to harass or bully people who sign petitions.

If you're talking about physical bullying, then there already are laws covering that. If you're talking about people saying mean things, though, I think that's covered by the First Amendment.

Actually, we're talking about people being boycotted and fired.


As to Joe the Plumber, couldn't state employees who accessed his information be charged with Official Oppression? (that's an offense in Texas, I don't know if it is elsewhere)

Of course, but that wouldn't help Joe the Plumber, or reverse the results of the invasion of his privacy. In fact, he might have to testify, which takes time, money and invovles more publicity, or else see the prosecution fail.
9.11.2009 12:59pm
Soronel Haetir (mail):

Actually, we're talking about people being boycotted and fired.


Except these are rightly legal actions with regard to political views. Political affiliation is not a suspect class. If your boss doesn't like Democrats or fans of Metallica you have no legal recourse if you are fired. *Assuming you are in an at-will state.)
9.11.2009 1:12pm
pintler:

A better way to deal with this might be to have laws addressing attempts to harass or bully people who sign petitions.


As an analogy, what about anonymous juries? In general, juries are not anonymous, but their identities can be kept secret if the specific defendants pose a larger than normal threat to the jurors. Harassing jurors is of course already a crime, but we still sometimes feel anonymous juries are necessary.

In the case at hand, the people who want the names intend to post them online and have made statements that viewed in the least favorable light might be construed as suggesting that, e.g. an HR clerk hostile to the referendum might screen resumes against the list of signers. The people who want to post the names naturally dispute that that would happen.

In practice, that kind of action would be very hard to detect.


Aren't there laws that specifically target voter intimidation?
Isn't this a similar problem?


I don't think so - your vote is anonymous. Someone might try to keep voters from the polls based on e.g. race or gender or wearing a yarmulke, but whichever candidate wins the mayoralty can't go back and fire city workers who voted for his opponent, because he can't know what happened in the privacy of the voting booth.

These are of course policy arguments; EV's point was 'might be bad policy but is constitutional; if you don't like the policy change state law'.


The court claims here -- and I hadn't seen this before -- that the SecState's office itself canvasses the names to determine and detect fraud. How vigorous is that process?


I dunno the details, but they certainly don't accept them at face value - the local paper has been giving blow by blow accounts of the verification process - both sides arguing about who has the most observers in the room, whether the observers are copying down names, talking to the election workers, etc. If either side can find fault with the process I'm sure we'll hear about it :-).
9.11.2009 1:18pm
ShelbyC:

He was punched first. So I take it you want him to use a firearm in defense instead of biting?


Biting someone's finger off clearly isn't self defense against getting punched. You have to bite the whole fist off.
9.11.2009 2:53pm
ShelbyC:

*Assuming you are in an at-will state.)


aren't all states at-will states? And all states have exception to the at-will doctrine, some more than others.
9.11.2009 2:55pm
Andy Rozell (mail):
To David Walser:

That'll teach me to read the linked opinion, won't it?

Other than for verification, I don't see how anybody has any need for the information.
9.11.2009 2:57pm
zuch (mail) (www):
Andy Rozell:The real problem is the use that some people and organizations make of that information to intimidate and harass petition signers. To me the problem seems similar to voter intimidation.So I assume you think that RWers taking videos of adult video store customers, women's health clinic visitors, and otherwise harassing and intimidating people exercising their constitutionally protected freedoms (not to mention "death watch" websites) is also a problem?

Cheers,
9.11.2009 3:02pm
arbitraryaardvark (mail) (www):
The Court reached the right result, although as EV says the reasoning is open to criticism. Strict scrutiny is probably the wrong standard. The court replied on Talley, McIntyre, Buckley v ACLF. Those are my favorite cases, but they don't really fit here.
Plaintiffs deserved to win on their court II:
In Count II, Plaintiffs allege that the Public Records Act is unconstitutional as applied to R-71 because "there is a reasonable probability that the signatories of the R-71
petition will be subjected to threats, harassment, and reprisals." Id.

The relevant cases are Valeo, McConnell, Brown v 74 Campaign Committee, NAACP v Patterson ex rel Alabama, Bates v Little Rock. Because there are legitimate reasons to issue the injunction, it should be upheld on appeal if any.
Non-disclosure in situations of likely harrassment requires a case by case analysis, and that's a job for the courts, not just the legislature.
9.11.2009 3:56pm
Andy Rozell (mail):
Zuch

Why would you assume anything?
9.11.2009 4:11pm
Korla Pundit (mail) (www):
What other reason would anybody have for the names of petition signers than to harrass, threaten, publicly embarrass or otherwise intimidate people to keep them from exercising their Constitutional rights?

There are none possible.
9.11.2009 4:54pm
Korla Pundit (mail) (www):
>So I assume you think that RWers taking videos of adult video store customers, women's health clinic visitors, and otherwise harassing and intimidating people exercising their constitutionally protected freedoms (not to mention "death watch" websites) is also a problem?

Yes, that is a similar problem, but that is stuff done on public property by private citizens, so there is a conflict between their rights to photograph in public spaces vs. privacy rights of other citizens.

Access to petitions is via the government, which should not be giving harrassers the names and addresses of potential targets.

Rights have different weights when the government is involved. Sort of like with censorship. Private censorship is OK. Government censorship is scary.
9.11.2009 4:59pm
Suzy (mail):
I agree with the analysis that it's constutitional, but I tend to think it's bad policy. When you sign a petition, you know you're making a public statement. You know that the government and the petition takers, at least, will know your name and be able to verify your support for the initiative. However, I don't think most petition signers would understand that they're opening themselves to a public display of the petition signers, say on the internet, to be used by anyone. For that reason I'd favor legislating at least a semi-private process. Making names widely available would certainly deter some people from signing if it became a common practice, and perhaps the numbers deterred would be significant.

It's also significant that the names might be used as evidence of a particular opinion on an issue, even if this is inaccurate. For example, some people sign just because they'd like to see a vote taken on some issue, even if they don't agree: e.g. they might want a gambling initiative put on the ballot because they're confident it will be defeated, and that this will deter future efforts to expand gambling. So let's imagine they are put on an internet list of people that gives the strong impression they "supported expanded gambling". It would be true that they supported the petition, and false that they supported expanded gambling. Could we fairly resolve those situations under the current laws, or wouldn't it be better to legislate against releasing the names, given the strong likelihood of such misuse?
9.11.2009 5:13pm
Korla Pundit (mail) (www):
If it becomes precedent to make such lists public, then what if there's a petition in favor of some kind of civil rights legislation in the south, or a petition to legalize later term abortion in the Bible Belt? Or any other initiative that might be unpopular with somebody? Why should individual citizens have that chilling effect that places them and their families at risk from some extremists?

Then we will have government by implied threat, real or imagined.
9.11.2009 5:50pm
Randy R. (mail):
"On the other hand, Joe 'the Plumber' Wurzelbacher's personal information was improperly accessed more than a dozen times by Ohio state employees in the first 24 hours after the debates - to say nothing of government workers outside of Ohio and the private sector. He was fired from his job and received harassing phone calls and death threats."

What petition did Joe the Plumber sign his name and address to?
9.11.2009 6:48pm
Randy R. (mail):
"There are none possible."

In Massachusetts, the anti-gay marriage crowd sometimes told people they were signing a petition against gambling, or were in favor of marriage. In other words, people asking you to sign a petition could be lying to you. If you name was made public, you could check to see and remove your name if it was done under false pretenses.

Furthermore, why not make your name public? AFter all, if you are happy enough to outlaw gambling, gay marriage, or sex with dogs, why not stand up and be counted? Or what if the petition was to outlaw Catholics, or ban God from all public discourse -- wouldn't you like to know if your neighbor is anti-God?
9.11.2009 6:53pm
Guest12345:

AFter all, if you are happy enough to outlaw gambling, gay marriage, or sex with dogs, why not stand up and be counted?


Because signing a petition to put a question on the ballot isn't the same as expressing an opinion about the question.

The fundamental problem with all the anti R71 folks is that they don't want public participation. They just want to say "this is how it is. stop questioning my opinion. you don't get a vote." as opposed to letting people be involved.
9.11.2009 7:18pm
Laura(southernxyl) (mail) (www):
Here is a video of people signing a petition who possibly ought to be embarrassed, but I'm not sure they are.
9.11.2009 7:56pm
LongCat:

Furthermore, why not make your name public? AFter all, if you are happy enough to outlaw gambling, gay marriage, or sex with dogs, why not stand up and be counted? Or what if the petition was to outlaw Catholics, or ban God from all public discourse -- wouldn't you like to know if your neighbor is anti-God?


If this is your rationale, I would assume you're also against the secret ballot, right?
9.11.2009 8:54pm
Randy R. (mail):
"The fundamental problem with all the anti R71 folks is that they don't want public participation. They just want to say "this is how it is. stop questioning my opinion. you don't get a vote." as opposed to letting people be involved."

Then you have a fundamental problem with representative democracy. Most bills that pass any legislature do not have any direct public involvement. why should this be any different?

"If this is your rationale, I would assume you're also against the secret ballot, right?"

Nope. I'm in favor of representative democracy, and our reps vote openly on all these issues, so that you know exactly how they vote on any issue. You wouldn't want your rep to vote on a secret ballot, would you?
9.14.2009 9:55pm
Korla Pundit (mail) (www):
>Nope. I'm in favor of representative democracy, and our reps vote openly on all these issues, so that you know exactly how they vote on any issue. You wouldn't want your rep to vote on a secret ballot, would you?

Idjit.
9.15.2009 1:43pm

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