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Commentary

Doe v. Reed a Disappointment on Several Fronts

The Supreme Court published Doe v Reed last week, at the very end of its 2009-2010 term, and the case was a major disappointment in many ways. At issue in the case was a challenge to the Public Records Act of the State of Washington that, according to the Washington Secretary of State, forced state officials to disclose publicly the contents of petitions for a referendum on the recently passed and signed State of Washington law. The law extends benefits to same-sex couples. The referendum demand, which gathered sufficient petition signatures, put the law to a popular vote. The people of Washington voted 53% to 47% to sustain the law.

First and foremost, the majority decision, written by Chief Justice Roberts, did not decide the critical question in the case. The complaint has two counts. Count I was a challenge to the disclosure of all referendum petitions; Count II was a challenge to the disclosure of the specific referendum petitions on the same-sex benefits law. The complainants argued that signers of the petitions would be subject to personal harassment by opponents of the referendum.

The Supreme Court decided Count I against the petitioners by a vote of 8-1 and did not reach Count II. The majority opinion of the Chief Justice, joined by only five other Justices, construed Count I to be a “facial challenge” to the Public Records Act, applied an “exact scrutiny” test, and found that the Act met the test. The State’s interest, the Court decided, in detecting fraud and mistake in the petition signature outweighed any evidence of any harm to the signers of referenda. Count II had not been reached by the courts below and the majority opinion did not comment on its merits. Count II, of course, is the more important of the two counts as there had been claims, highly contested, of actual harassment by gay rights advocates in Washington as well as other states.

Several Justices took the bait and discussed Count II in separate opinions. A tally of the probable vote on Count II across all the opinion was five against (J.J. Breyer, Stevens, Sotomayor, Ginsburg, and Scalia) , two for (J.J. Alito and Thomas), and two abstained (J.J. Roberts and Kennedy). Justice Stevens, a member of the five, has retired, however, and the new Justice, likely Ms. Kagan, must be added to the ranks of the unknown.

In the “as-applied challenge” of Count II, the Court had to find a “reasonable probability” that the compelled disclosure of the petitions would subject signers to threats, harassment, and reprisals. Of the five who wrote disparagingly of the Count II, four (J.J. Breyer, Stevens, Sotomayor, and Ginsburg) argued that the burden of proof ought to be “heavy” or that the cases that met it ought to be “rare.” Justice Scalia did not believe that the case presented a First Amendment question at all: Signers should have the “courage” to “stand up in public for their political acts.”

Justice Alito saw harassment in the electronic age to be a real threat to signers and Justice Thomas, who would also sustain the facial challenge, added that the State had less severe legal alternatives to disclosure in its effort to stop fraud and mistakes. They may have disagreed over what the specification of the exact right infringed was, however, as Alito wrote of the rights of free speech and privacy while Thomas wrote of the right to associate politically.

The second reason for disappointment comes with the raw mechanics of the decision. The decision consists of a thirteen page majority opinion of six, thirty-one pages of five separate concurring opinions, and a dissent. Putting the seven opinions together reveals some very odd combinations. Justice Breyer joined the majority opinion, wrote a concurring opinion, joined Justice Stevens’s concurrence even though he did not join the majority opinion, suggested support for Justice Sotomayor’s concurrence when she did join the majority opinion but did not join formally her opinion. Why the complexity?

The third reason for disappointment comes with the logic of the balancing analysis used in both the facial and “as-applied” tests. Two related questions were not decided and discussed only obliquely. First, does the “public’s right to know” (also phrased as “transparency”) count as a benefit? And, second, does the “public’s loss of general privacy” (as distinguished from a claim of a right to be free from harassment or recriminations) count as a cost? We do not know. On the first question, for example, the majority opinion reserved, Justice Sotomayor wrote favorably of “transparency,” Justice Stevens opined that the public’s right to know “may” be enough, and Justice Alito thought the idea abhorrent. Yet the general public’s right to know is at the forefront of the disclosure debate on petitions.

A fourth reason for disappointment, and there are others but I will stop here, is the Court’s casual approach to the many roles petitions play in the election process. In addition to petitions on referenda, there are petitions for citizen initiatives (both on constitutional amendments and on the promulgation of laws), for recalls, for political party qualification, and for candidate nominations. Try using Justice Scalia’s “quasi-legislator” argument on recall petitions, for example. [For that matter, in a referendum as opposed to an initiative, is not a citizen more of a “quasi-governor” with veto power?] Moreover, petitions are found in local elections as well as state elections. On the other hand, does the rationale of the case leak over into all political petitions filed with state officials or is it limited to referenda? Does the rationale of the case also leak over into voting or campaign support (money, endorsements and time) cases?

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

U.S. Supreme Court strikes down aggregate campaign contribution cap

The U.S. Supreme Court issued its opinion today in McCutcheon v. FEC, striking down aggregate limits on political campaign contributions but leaving in place limits on contributions to individual candidates.

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