By Clark Jennings | 33 U. ARK. LITTLE ROCK L. REV. 263 (2010).
This note examines the U.S. Supreme Court decision in Doe v. Reed in which the court confronted the question of whether third party groups may publish the names of people who have signed petitions in support of an initiative or referendum. In deciding the case, the Court upheld a broad right of disclosure with respect to signatories of initiatives and referendums but did so by narrowly invoking the state’s interest in the integrity of the electoral process and related issues of ballot fraud. The author argues that the majority opinion failed to boldly meet the issue’s complexity and settled for a ruling on limited constitutional grounds that leaves the federal courts to grapple with the unanswered questions.
The controversy came to the Court as a result of two initiatives, California’s proposition 8, and Referendum 71 in Washington. In California, an action was filed by supporters of Proposition 8 who had been harassed and threatened after their names had been made public. Upholding disclosure provisions of the state’s Political Reform Act, the district court determined that the state’s interest in disclosure was compelling and that the plaintiff’s circumstances did not merit an exemption. In the Washington case, the district court held that the right to participate anonymously in the political process is implicit in the First Amendment. The Ninth Circuit disagreed. In a decision involving seven separate opinions, the Supreme Court held that the public interest in disclosure was substantially related to the important interest of preserving the integrity of the electoral process. However, the Court did leave the door open for those seeking an exemption for disclosure to do so on narrower grounds by holding that this type of activity is a form of expression that falls squarely within the First Amendment.
The author presents a brief background of the rise and popular usage of citizen lawmaking in America, discusses circumstances surrounding the recent controversial measures in California and Washington, and reviews the Court’s decision in Doe v. Reed, focusing on the narrow grounds on which the holding was reached. The note provides a critical analysis of precedent and arguments advanced by opponents of disclosure, explores reasons why states may have a compelling interest in disclosure, and why the Court could have taken a stronger position in support of transparency. The author asserts that the Court should have struck a clear balance in favor of transparency and openness.