US Supreme Court Rejects Facial Challenge To Release of Petition Signers, But Says As-Applied Challenge May Win

Religion Clause
The U.S. Supreme Court today by an 8-1 vote rejected a facial challenge to Washington state’s Public Records Act, but left open the possibility that a pending as-applied challenge could succeed. At issue in Doe v. Reed, (S. Ct., June 24, 2010), are objections to the release of the names of signers of a petition seeking a referendum to overturn Washington’s expansion of the rights of domestic partners. The Court concluded that the state’s interest in protecting the integrity of the electoral process is strong enough to justify the public release of most referendum petitions. But here plaintiffs claim that the objective of those seeking release is to post the names of signers on the Internet and urge backers of the domestic partnership bill to contact and harass them. Courts may prohibit disclosure if the signers can show a reasonable probability they will face harassment, threats or reprisals from either government officials or private parties.

While there was broad agreement on the result, the case produced six separate opinions, including a dissent by Justice Thomas who argued that the facial challenge should succeed because there are always less restrictive means for the state to use to preserve the integrity of the referendum process. Various concurring opinions differed on the strength of the remaining as-applied challenge in the case.

From Religion Clause by Howard M. Friedman, Professor of Law Emeritus, University of Toledo

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