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Scalia's wisdom on secrecy and voter initiatives

Controversial issues such as gay rights raise questions about the balancing of democracy and secrecy.

May 04, 2010

We don't often agree with Supreme Court Justice Antonin Scalia, but he had it exactly right when he chastised supporters of an anti-gay rights ballot initiative for trying to keep their identities secret. "The 1st Amendment does not protect you from criticism or even nasty phone calls when you exercise your political rights to legislate or to take part in the legislative process," Scalia told a lawyer for a group that unsuccessfully sought to overturn the state of Washington's domestic partnership law.

Scalia's colorful comments during oral arguments last week focused on a key distinction between signing a petition to put an issue to the voters and casting a secret ballot. In states such as Washington — and California — voters participate in the legislative process when they sign ballot petitions. The legislative process is supposed to be public, and indeed petitions are signed in public. Those facts distinguish ballot signatures not only from the secret ballot but also from the sort of anonymous political leaflets that the court protected in a 1995 ruling.

Unlike California's public records law, Washington's version doesn't make an exception for ballot signatures. Yet supporters of the repeal of the domestic partnership law sought an injunction to prevent release of the names anyway. The U.S. 9th Circuit Court of Appeals ruled in favor of disclosure, but in October the Supreme Court ordered that the names be withheld while the appeal went forward.

At the oral arguments, the lawyer for petition signers argued — as had supporters of Proposition 8, California's same-sex marriage ban — that identifying opponents of gay rights could lead to harassment. He said the campaign manager of the Washington initiative "had his family sleep in his living room because of the threats." To which Scalia rightly replied: "The threats should be moved against vigorously, but just because there can be criminal activity doesn't mean that you … have to eliminate a procedure that is otherwise perfectly reasonable."

Two of Scalia's conservative colleagues, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., seemed more receptive to the privacy argument. That makes Scalia's position all the more significant. It also suggests that the outcome of this case may not be determined by the justices' unwise decision in January to prevent the broadcast of the trial on the constitutionality of Proposition 8, a ruling in which Scalia was in the majority. We hope that the eventual opinion reflects one of Scalia's other observations at oral arguments: "You know, you can't run a democracy this way, with everybody being afraid of having his political positions known."

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