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From Not Dispositive To Irrelevant:

Here's a passage from Doe v. Reed, the opinion I criticized below. I don't think the court needed to reach this issue, because I think there's no need for strict scrutiny when state law chooses to disclose the names of people who take legally operative steps such as signing initiative, referendum, or recall petitions. But I want to set that aside here, and focus on the argument the court made -- an argument with a structure that I often hear (especially from law students), and that bears a bit of explicit analysis:

In the alternative, Defendants assert that there exists a second "compelling" interest in favor of disclosure. Defendants argue that the electorate is entitled to know "who is essentially lobbying for their vote, and thus, who likely will benefit from the measure." But this argument is unavailing because neither the Court nor the parties have the ability to identify whether an individual who supports referral of a referendum to the next ensuing general election actually supports the content of the referendum or whether that individual simply agrees that the referendum should be placed before the voting public. In other words, the identity of the person who supports the referral of a referendum is irrelevant to the voter as the voting public must consider the content of the referendum and be entitled to a process by which it can ensure that the petitions are free from fraud.

Note how the court argues here: (1) A person could sign a petition simply because he "agrees that the referendum should be placed before the voting public," and not because he "supports the content of the referendum." (2) "In other words," the identity of the petition signers "is irrelevant" to the voter who seeks to figure out "who is essentially lobbying for" the proposal.

But statement 2 is not at all just "other words" for statement 1. Statement 1 correctly asserts that signing a petition is not dispositive evidence of the signer's views on the merits. Some people do sign petitions because they think the public is entitled to vote on the question, even though they'll vote against the proposal; some people might expect the proposal to lose, and might sign the petition precisely because they want a statewide vote in which the proposal loses; some people might have deeper political reasons for signing, perhaps because they think the proposal's presence on the ballot will bring out voters who will vote the right way on some other measures or in candidate races; some people might just have been buffaloed into signing something; and so on.

But this hardly means that the identity of the signers is irrelevant to determining who is lobbying for the proposal. If, for instance, it turns out that 60% of a petition's signers are registered Democrats and 10% are registered Republicans, in a state that's generally split 50-50, voters can reasonably conclude that the petition is probably a project of Democrats, and would thus be more likely serve the interests of traditionally Democratic interest groups -- relevant information to many voters, especially if there's a dispute on what the law's effects likely will be.

Now if the argument were simply that the connection isn't strong enough to pass muster under strict scrutiny (the test that the court is applying here), that would be plausible. Likewise, if the argument were that the interest in getting such information about the initiative's backers wasn't compelling enough to satisfy strict scrutiny, that would be plausible, too. (My disagreement with the court on the bottom line stems from my view that strict scrutiny shouldn't apply here.) But this leap from (1) the signature being an imperfect proxy for backing the merits of the petition to (2) its being irrelevant to deciding who is backing the merits of the petition is not sound.

JunkYardLawDog (mail):
EV, you don't have to provide person level identification of petition signers to provide info on how many were democrats versus republicans versus independents. Can you provide an example of why actual person level identification of signers is required to meet some reasonable analysis goal of voters? Republican versus democrat doesn't do it, and knowing who signed a petition doesn't necessarily provide party affiliation data.

Also, it would seem to me that signing a petition is more akin to a voting ballot process than you are allowing, and wouldn't all the reasons or most of the reasons for why secret ballot voting is good also apply to petition signing. Wouldn't potential signers be subject to the same chilling effects and problems that would befall non-secret voting ballots?

Says the "Dog"
9.11.2009 11:31am
Randy R. (mail):
"Also, it would seem to me that signing a petition is more akin to a voting ballot process than you are allowing, and wouldn't all the reasons or most of the reasons for why secret ballot voting is good also apply to petition signing. Wouldn't potential signers be subject to the same chilling effects and problems that would befall non-secret voting ballots? "

If that were the case, then all petitions must remain completely private even from the people who seek the petition. Yet they are not.
9.11.2009 11:33am
Nuke Laloosh:
I agree that the jump in reasoning is not solid logic. With the ability to build a database that could easily link petitioners to their party registration and political donations voters would be able to glean a lot of information from the release of the names attached to the petition.

As to the merits of the injunction: it seems reasonable to prevent release of the names due to the potential of harm that could befall those who signed the petition. The real solution here is, as you stated, a legislative process to define the limitations of "anonymous speech" as it applies to those who sign petitions. In the absence of legislative action, however, I feel that the court was compelled to act to at least maintain the status quo.
9.11.2009 1:18pm
Non:
The identity of the supporters, allows voters a way to evaluate the arguments, thier sincerity, thier interest (eg corporate or otherwise) etc.

Why this Judge thinks an uninformed electorate is a good thing is beyond me. It really is a stupid decision.
9.11.2009 2:14pm
ArthurKirkland:
Spectacularly poor legal reasoning from a federal judge.

The most obvious flaw involves the Emil Faber octrine ('knowledge is good'), vividly amplified by state law in this circumstance.

But the manner in which this decision ignores the practical circumstances makes it appear intensely result-driven.

The public is entitled to review any petition for fraud, mistake, and the like. This review must occur in an extremely brief period. Durning that period, those examing the petitions are entitled to see every name, check the information associated with that name, or even call anyone whose signature is claimed to count. Also, one of the best ways to scour the petition for flaws would be to publish the petition and ask the public to report any incident of potential fraud ('My name is listed but I did not sign'), mistake, or something in between ('It appears this person is being counted three times') or 'My neighbor is listed but he lives in another state now').

Most (probably all) petition procedures entitle any citizen(s) to obtain a complete copy of the petition within a day or two of filing. This cat not only is out of the bag but has been roaming the streets freely for an extended period. There is no confidential information to protect because every element has already been dislosed and reviewed, and the public was entitled by law to review every jot and tittle.

If there is a persuasrive or even plausible argument to overcome the policy and practical points favoring (re-)disclosure, this judge did not offer it.
9.11.2009 5:34pm
ReaderY:
The rational basis test essentially equates power with blindness: the harder it is for one to see a rational basis in a position one disagrees with, the more easily one can strike it down. Moderate and honest people, who even on matters they feel strongly about have both the ability to see the possibility that the other side has a point and the conscience to admit it, lose. The side that makes the most noise wins.

Instead of being neutral or moderating influences, courts become targets for the polarized and opportune.
9.11.2009 6:02pm
ReaderY:
I agree secrecy is good policy but not constitutionally mandated. The secret ballot is not constitutionally mandated.
9.11.2009 6:04pm
ArthurKirkland:
If secrecy is a good policy, a number-of-signatures requirement would be pointless, because there would be no way to check signatures. A referendum procedure without a number-of-signatures requirement would be a hoot -- the average person would spend four hours completing a ballot.
9.11.2009 6:14pm
kietharch (mail):
We voters can see the parallel between requiring disclosure of contributions to a candidate or political movement and requiring transparency in the production of an Initiative including disclosure of the promoters and signers. The comparison seems clean and undeniable. The "outing" and the public threats to those promoters and signers by adversaries of the Initiative weakens the clarity of the issue and has worked against opponents' case and probably lost them some votes.
9.11.2009 9:06pm
subpatre (mail):
There have been all sorts of arguments in favor of releasing the petition signers' names. Not one of those 'reasons' is at issue here; the sole rationale for releasing petitioners' names is to discourage participation in the electoral process. Any other stated reason is transparently bogus.

Randy R's binary 'completely public' versus "completely private" is bogus, Non's allowing voters to "evaluate the arguments" is bogus, ArthurKirkland's "fraud, mistake, and the like" is bogus, and Kietharch's 'disclosure requirements' is bogus. So to are the court presented arguments of disclosing "who is essentially lobbying", 'acting as legislators', or disclosure as a signature verification aid; all are bogus.

The one and only reason for disclosing signers' names is to intimidate or bully them, to publicly expose signers' to "personal and uncomfortable conversation" for the purpose of political suppression. Like other states, Washington is aware of these sordid motivations and —in the only law touching on petitioner signers' identities— provides:
The verification and canvass of signatures on the petition may be observed by persons representing the advocates and opponents of the proposed measure so long as they make no record of the names, addresses, or other information on the petitions or related records during the verification process.

There is only a slight matter of degree separating Whosigned and KnowThyNeighbor actions from that of standing at a Philadelphia poll, wielding a bat and addressing people by racist names.

Although I disagree with the court's legal explanation —though not for Eugene's reasons— the judicial intent is correct; to protect citizens from intimidation and acts of violence, and protect the petition process. Good for them!
9.12.2009 8:36am
ArthurKirkland:
How would you propose that the validity of a signature be determined, subpatre, without publicly identifying a person whose signature is to be counted toward the threshold?
9.12.2009 1:24pm
subpatre (mail):
ArthurKirkland asks, "How would you propose that the validity of a signature be determined, subpatre, without publicly identifying a person whose signature is to be counted toward the threshold?"

Oh for heavens' sake! Read the opinion that Eugene links to in which there is an explicit description of the Washington state petition signature validation process.
"The State's argument [to publish] would be more persuasive if there was not a more narrowly tailored signature verification procedure. See RCW 29A.72.230"

Throwing mud as Kirkland has, hoping something will stick, is just adding more points to the 'bogus' charge. Deal with that reality of threats, harassment, and reprisals —and defend it if you will— rather than weasel.

In fact, Whosigned and KnowThyNeighbor intend to bully, harass, and intimidate the signers of the petition; their sole intent is to suppress public participation. Perhaps that is where our political process will go. . . along with truncheon wielding thugs at the polls who only intend to bully, harass, and intimidate voters so as to suppress public participation.
9.12.2009 2:42pm
ArthurKirkland:
Thank you for the pointer toward the Washington signature verification process, which seems ridiculous to the point of being nearly worthless (except to the extent it promotes prefer fraud and collusion).

If Washington maintains anonymity of signers during the verification process, it becomes more reasonable to consider maintaining anonymity of signers in another context.

Is there a history of "threats, harassment and reprisals" in jurisdictions in which the signature verification process makes the identify of signers public information?

Are concerns about reprisals adequate to overcome the principles inclining a free market for information?

Those appear to be reasonable points for debate.
9.12.2009 4:09pm
ArthurKirkland:

Perhaps that is where our political process will go. . . along with truncheon wielding thugs at the polls who only intend to bully, harass, and intimidate voters so as to suppress public participation.


A person holding a nightstick near a polling place is indefensible, but also rare. The far larger threat to fair elections, for decades, has been organized, widespread voter suppression programs relying largely on unlawful conduct. The conduct of one national political party has been so egregious that, I believe, the relevant party is governed by a consent order to this day.
9.12.2009 4:14pm

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