Joe Sandler and Liz Howard filed an Amicus Brief in the Doe v. Reed case on behalf of several direct democracy scholars and the Ballot Initiative Strategy Center. This case involves the constitutionality of public disclosure the persons who sign petitions for ballot initiatives and referenda.
Read the full brief here. A summary is below:
SUMMARY OF ARGUMENT
Application of the “exacting scrutiny” standard is not appropriate in this case. Even assuming that the mere act of signing a referendum or initiative petition is “core political speech,” Petitioners have not shown that public disclosure of the names of signers in any way burdens that speech. Such disclosure does not “compel” any speech beyond the mere fact that a voter has signed the petition. Disclosure does not infringe “privacy of identity, association and belief,” as Petitioners suggest, because there is no reasonable expectation or assumption of privacy or secrecy: any voter who signs a petition knows that her signature, name and address, and the fact that she is signing, is being put on paper in the hands of a stranger, in a public place, in front of others, and will be submitted to a government agency. Further, public disclosure of petitions is widespread and routine in states that allow ballot initiatives and referenda. Nor does disclosure create any risk of intimidation or harassment of signers. Of the approximately 600,000 voters who signed referendum petitions in the State of Washington in the last decade, Petitioners have failed to identify a single individual who claims to have been harassed or intimidated as a result of mere disclosure of her signature. More than a million names of signers of petitions for referenda and initiatives opposing gay marriage have been posted on the internet. Yet there is no evidence that any of these signers, has faced any threat of retaliation or harassment by reason of that disclosure.
Even if public disclosure of petition signatures is to be subjected to “exacting scrutiny,” the State’s disclosure of the signatures under the Public Records Act serves sufficiently important governmental interests to find such disclosure constitutional. First, fraud is a widespread, significant problem in signature gathering for ballot measures. Public disclosure has in fact proven essential and indispensable in exposing such fraud in a number of states.
Second, it has been commonplace for signature-gatherers to mislead and trick voters into signing referenda and initiative petitions those voters would not have signed had they been informed of the actual content of the ballot measures. Numerous voters have discovered such deception, and have been able to remove their names or disassociate themselves from the measure, only because their signatures were disclosed publicly. In fact, there is no way that a voter duped into signing a petition can exercise that right in the absence of public disclosure.
Third, public disclosure serves an important interest in informing voters about ballot measures. Scholarship indicates that “information brokers” such as the media and interest groups can analyze and disseminate information about who is signing petitions and how they are being collected in a way that can provide “cues” to voters, to enable those voters to make more reasoned and informed decisions about whether to support a ballot measure.