On April 28, the U.S. Supreme Court heard oral arguments in Doe v. Reed, a lawsuit filed by a political action committee in Washington State. The case could decide whether public disclosure of referendum petition signatures is permitted or if signing such a petition is a private political act protected by the First Amendment.

Doe v. Reed centers on the public's right to know who signed petitions related to Referendum 71, a 2009 attempt to overturn Washington’s expanded domestic partner law, which gives gay and lesbian couples the same rights as married couples.

Protect Marriage Washington, an anti-marriage equality political action committee, submitted 138,500 petition signatures to place Referendum 71 on the ballot. The names of the petition signatories are a matter of public record based on Washington's Public Records Act.

The petitioners in Doe v. Reed, including Protect Marriage Washington and several signatories, are arguing that if the petition signatures are released, the signatories will be subjected to harassment and abuse. As a result, they argue, the public will be discouraged from signing petitions in support of placing referenda and initiatives on the ballot, and this will have an adverse effect on free speech.

The State of Washington is arguing that the names should be disclosed upon request, as required by the state's Public Records Act. Such disclosure helps to sort out whether fraudulent names were used on the petition to reach the required number of signatories to qualify an initiative or referendum for the ballot.

The state's Attorney General, Rob McKenna, who argued in support of disclosure, told the Seattle Times that the "state's disclosure laws impose a 'modest burden' on petition signers, compared with the 'very compelling, very strong government and public interest in transparency, accountability and fraud protection.'"

Protect Marriage Washington succeeded at the district court level when a judge blocked the release of the signatures. The case then moved to the U.S. Court of Appeals for the Ninth Circuit, which reversed the lower court's decision. The Ninth Circuit noted that "the signatures are collected in public and shown to public officials and that the release of the names furthers the important governmental aim of preserving electoral integrity." Protect Marriage Washington then appealed to the Supreme Court, which blocked the release of any signatures until it could hear and decide the case.

The outcome of this case could impact referendum and initiative petitions nationwide. If the Court rules that disclosing the names would discourage free speech and thus violate the First Amendment, it would likely keep all referendum and initiative petitions in Washington private. The same effect would possibly be seen in two dozen other states, as well.

Twenty-three states submitted a joint amicus brief in support of the State of Washington. The states argued that public disclosure of referendum petitions "imposes minimal burdens on protected speech" and "furthers Washington’s compelling interests in preventing election fraud, preserving ballot integrity, and promoting open government."

The states argued that petition fraud has become more common in recent elections. "In Washington specifically, there was a 'rapid transformation . . . from volunteer to professional signature gatherers' in the 1990s. In conjunction with this shift, scholars now conclude that there may be as much, if not more, corruption in initiative campaigns than representative elections." Disclosing the names will allow the public to verify the validity of the signatures.

Several media organizations, including Reporters Committee for Freedom of the Press and Gannett Company, also submitted a joint amicus brief in support of Washington. They argued that if "the Court allows referendums to be placed on the ballot without disclosing the identities of the government actors/citizens who petitioned for the referendum, the general public has no way of holding the government accountable for the legislation."

Several members of the Court seemed skeptical of arguments seeking to keep the signatures secret. Justices Antonia Scalia, Ruth Bader Ginsburg, Sonia Sotomayor, and John Paul Stevens asked James Bopp, attorney for the petitioners, some pointed questions, poking holes in Bopp's arguments in support of keeping the signatures private.

Scalia told Bopp that "running a democracy takes a certain amount of civic courage. And the First Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate."

When discussing the possibility of threats, Scalia said, "The threats should be moved against vigorously, but just because there can be criminal activity doesn't mean that you – you have to eliminate a procedure that is otherwise perfectly reasonable."

Sotomayor focused on the implications of this ruling beyond the case at hand. She asked Bopp, "You don't think that putting aside this kind of referendum, just a hypothetical referendum having to do with a certain tax scheme – you don't think the voters would be interested in knowing what kinds of people in what occupations are interested in that particular tax benefit or not?"

Bopp responded that a "few might be, but we think this is marginal information." He also said that "the petition signature and distribution is only for a very limited governmental interest."

Chief Justice John Roberts and Justice Samuel Alito asked McKenna questions that indicate that they may support keeping the petition signatures a secret from the public. They questioned McKenna on how far disclosure will go if it is allowed.

Roberts asked whether "having your name revealed on a petition of this sort might have a chilling effect on whether you sign it."

Alito and Roberts also asked McKenna questions focusing on the possibility of violence, harassment, and intimidation against petition signatories. Roberts asked McKenna, "Do you think that the disclosure of the names, pending the resolution of their as-applied challenge, would subject them to incidents of violence and intimidation?"

Doe v. Reed is part of a recent pattern to eliminate disclosure laws. This case draws parallels to Many Cultures, One Message v. Clements, a lawsuit on behalf of two volunteer groups challenging part of Washington State's grassroots lobbying disclosure law as a violation of their First Amendment rights to free speech, assembly, and petition. Washington is one of 36 states that have some sort of law addressing disclosure of grassroots lobbying.

The organizations seeking to prevent grassroots lobbying disclosure are making similar arguments as the petitioners in Doe v. Reed. They argue that the registration and reporting rules prohibit them from "exercising their right to engage in anonymous political speech," according to the suit. They further argue that grassroots lobbying disclosure laws and the cost for violating them may discourage small groups from becoming active in politics and public policy.

The Supreme Court is expected to decide Doe v. Reed by the end of June.