Doe #1 v. Reed – Oral Argument – April 28, 2010

Media for Doe #1 v. Reed

Audio Transcription for Opinion Announcement – June 24, 2010 in Doe #1 v. Reed

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John G. Roberts, Jr.:

We’ll hear argument this morning in Case 09-559, John Doe v. Reed, Washington Secretary of State.

Mr. Bopp.

James Bopp, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court: No person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations.

Antonin Scalia:

What — what about requiring disclosure of campaign contributions?

James Bopp, Jr.:

Well, the–

Antonin Scalia:

Do you think that is unconstitutional?

James Bopp, Jr.:

–This Court has upheld the disclosure in Buckley v. Valeo in 1976.

Antonin Scalia:

Right.

Now, why doesn’t that fall within your principle that no person should be exposed to criticism for–

James Bopp, Jr.:

Well, it could–

Antonin Scalia:

–his political beliefs?

James Bopp, Jr.:

–It could potentially, and — but this Court subjected those requirements to the appropriate constitutional First Amendment analysis, found that there was sufficiently important governmental interest, some of which are not present when we’re talking about a referendum or initiative, and then also created an exception from even a generally valid statute where there is a reasonable probability of harassment of that particular individual or — or group.

So the First Amendment analysis regarding the privacy of association, the privacy of identity and beliefs, the potential of — of intimidation are all elements of the analysis that was employed by the Court in Buckley–

Sonia Sotomayor:

I’m — I’m trying to separate out the harassment aspects of this case from the working proposition that there’s some sort of freedom of association, of privacy.

Your theory, putting harassment aside, would invalidate all of the State laws that require disclosure of voter registration lists, correct?

All of those States like New York that permit public review of voter registration lists and party affiliations, et cetera — that’s illegal?

James Bopp, Jr.:

–No.

Sonia Sotomayor:

That’s unconstitutional?

James Bopp, Jr.:

No.

We believe they would not.

They would certainly be subject to First Amendment analysis.

But in — in those — in the instance of voter registration, there are other governmental interests that are not present in petition signings for referendums.

Sonia Sotomayor:

Explain to me the difference.

And — well, one other aspect of State legislative — I can only work from New York because I know it intimately, but it is a State that also permits or requires that petitions for candidate listing on the ballot be public as well.

New York relies in part, as this State does, on the public reviewing those petitions.

Would that be invalid as well, for a candidate’s running?

James Bopp, Jr.:

Well, we believe it would be subject to First Amendment analysis.

But, again, there are different governmental interests when you have candidates involved–

Sonia Sotomayor:

So explain to me what the difference is in those three situations.

James Bopp, Jr.:

–Well, one is you have candidates involved–

Sonia Sotomayor:

With — with the State’s interest.

James Bopp, Jr.:

–One is you have candidates involved.

And this Court recognized in Buckley that there were disclosure interests that related specifically, and actually only, to candidates.

For instance, people who contribute to a candidate, that information, to the voter, can signal the interests that the candidate, once he or she takes office, will be responsive to.

When we have an initiative, we know what the law is that is being voted upon.

It’s not a matter of — of electing a representative.

Sonia Sotomayor:

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?

James Bopp, Jr.:

Well, a few — few might be, but we think this is marginal information.

First, they are adopting a law.

And so we know what the law is.

And — and while it might be marginal information for a few people, once the measure qualifies for the ballot, this is only — the petition signature and distribution is only for a very limited governmental interest.

John G. Roberts, Jr.:

Counsel–

James Bopp, Jr.:

And that — and that–

John G. Roberts, Jr.:

–I’m sorry, go ahead and finish your answer.

James Bopp, Jr.:

–And that limited governmental interest is to preserve State money, to not conduct an election on the matter unless there is sufficient public support.

So–

John G. Roberts, Jr.:

Now, counsel, the responses you have given to a couple of the questions has been that the First Amendment analysis would apply.

But given you have a facial challenge, is that enough?

Don’t you have to indicate that the First Amendment analysis would prevail in either all of the other cases, most of the other cases, a significant portion?

This is a facial challenge.

And if the challenge is going to fail in some of those other cases, I think your facial challenge fails as well.

James Bopp, Jr.:

–Well, we’re only challenging the application of the Public Records Act to petitions and referendum petitions.

We’re not challenging it as it would be applied to petitions to put people on the ballot.

John G. Roberts, Jr.:

So we have to decide, in assessing your claim that, no matter what the referendum issue was, that there’s a significant intrusion on First Amendment rights?

James Bopp, Jr.:

Yes.

John G. Roberts, Jr.:

So that if, for example, the referendum involves a bond issue as to which people may have particular views, but they’re not going to get terribly excited about it, we’d still have to say that that’s protected under the First Amendment?

James Bopp, Jr.:

Well, actually, under — with modern technology, it only takes a few dedicated supporters, and a computer, who are willing to map — to put this information on the Internet, MapQuest it, as they did with respect to the contributors of Proposition 8, which resulted in — and then encourage people to harass and intimidate them, which resulted in hundreds of examples of harassment–

John G. Roberts, Jr.:

Well, my point is, though, you’re not likely to get that with respect to, you know, a debt issue, raising the debt ceiling from 0.8 percent to 0.9 percent.

You’re not going to get a crowd outside your house because you signed that petition.

James Bopp, Jr.:

–Well, it may not manifest itself in — in any particular initiative.

James Bopp, Jr.:

We agree with that, but we think the potential is there, and there is usually a group of supporters of any measure that, you know, are passionate about that particular issue–

Ruth Bader Ginsburg:

But — but don’t you have — I thought we were dealing with count 1 of the complaint.

James Bopp, Jr.:

–Yes.

Ruth Bader Ginsburg:

Count 2 would be the counterpart to the exception that’s made from the disclosure requirement with regard to contributions with certain organizations whose members might be harassed.

James Bopp, Jr.:

Well, with this–

Ruth Bader Ginsburg:

That’s — that’s not — that would still be open if you lose the first part of this case.

So going back to the question you were asked, how does this differ — that Justice Scalia asked — how does this differ from the contributor who says, well, I might be harassed?

The contributor would have an opportunity to show that.

James Bopp, Jr.:

–Buckley dealt with that exact question.

And first — the first step of the analysis is whether or not the law is — is valid under the First Amendment.

And then there is an exception to even a valid constitutional — a constitutionally valid law.

Ruth Bader Ginsburg:

So, that’s why I’m asking you why, on the first part, should it be any different, as long as you have the door open to show that if you were going to suffer reprisals, harassment, that an exception would have to be made?

James Bopp, Jr.:

Well, we don’t think that the exception is a substitute for considering the initial validity of the law, which–

Ruth Bader Ginsburg:

May I — may I ask you one — something that was not in your brief, but was in the Secretary’s brief.

Is this list available to Project Marriage?

And specifically on page 34 of Secretary Reed’s brief, the statement is made that the sponsoring organizations sometimes sell or trade these lists.

They use them for fundraising purposes.

So that would be the end of a person’s privacy, at least on one side.

Is that true, that the initiative sponsor uses these lists?

James Bopp, Jr.:

–Yes.

Ruth Bader Ginsburg:

Yes?

James Bopp, Jr.:

Yes, this is an act of private association.

The petition signers are associating with the referendum committee for purposes of placing this measure on the ballot–

Ruth Bader Ginsburg:

They don’t say: Now, I agree you can use my name for fundraising purposes.

But that’s — it’s implicit, you say, in their signing the petition that the–

James Bopp, Jr.:

–Well, what–

Ruth Bader Ginsburg:

–signature collector can sell the names, use them for its own fundraising purposes?

James Bopp, Jr.:

–What is implicit is they are associating with this group for a purpose, and that is support for, in this case, Referendum 71.

And so they use those names for valid purposes.

But–

Antonin Scalia:

Mr. Bopp, do you have any case in which we have held that the First Amendment applies to activity that consists of the process of legislation, of legislating–

James Bopp, Jr.:

–Yes, Buckley II.

Antonin Scalia:

–or of adopting legislation?

What is that?

James Bopp, Jr.:

Buckley II.

You struck down the requirement that the person who is soliciting signatures self-identify.

Antonin Scalia:

That is–

James Bopp, Jr.:

That is a process–

Antonin Scalia:

–Soliciting signatures is not taking part in the process of legislating.

James Bopp, Jr.:

–Well–

Antonin Scalia:

The person who requests a referendum is taking — when there’s a certain number of signatures required to achieve it, is taking part in that.

And in light of the fact that for the first century of our existence, even voting was public — you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for — the fact is 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 or to take part in the legislative process.

James Bopp, Jr.:

–Well, the–

Antonin Scalia:

You are asking us to enter into a whole new field where we’ve never gone before.

James Bopp, Jr.:

–Well, with all due respect, you have already opined in Buckley II that the person on the other side of the clipboard is protected by the First Amendment.

Ruth Bader Ginsburg:

I don’t think that’s — that’s true of Buckley II.

What was — what this Court said could not be done is that the solicitor could not be made to wear a badge that says “I am a paid solicitor”, but that the solicitor’s name had to be identified for the State.

Certainly, the solicitor — there was an affidavit, and there was the filings with whatever was the State agency.

So what was — what this Court said could not be done was this kind of in-your-face big button that says “I am a paid solicitor”, but the solicitor’s name and address certainly had to be disclosed.

James Bopp, Jr.:

That is true.

You’ve correctly described Buckley II.

But as we can see in the facts of this case, the public disclosure of the petition names in this case — there was a planned harassment and intimidation of these voters by–

Anthony M. Kennedy:

Well, let me — let me ask you, could the opponents of a particular ballot measure organize a boycott for — and picket businesses whose managers had supported that boycott?

James Bopp, Jr.:

–Yes.

Anthony M. Kennedy:

Had supported that initiative?

James Bopp, Jr.:

Yes.

Under the–

Anthony M. Kennedy:

Well, if that’s so, then under Claiborne Hardware, which I — I notice you didn’t cite in your brief, but if — if that’s so, then it seems to me that the State’s — or that — that the signers’ interest in keeping their names private is somewhat diminished.

James Bopp, Jr.:

–Yes.

Anthony M. Kennedy:

It’s a First Amendment activity.

James Bopp, Jr.:

But what we’re — but what is involved here that is not involved there is the requirement by the government that you publicly disclose your identity and beliefs on a matter that then–

Ruth Bader Ginsburg:

But — just–

MR. BOPP — subjects you to the boycott.

Let me stop you there, because I think your — your own brief, I think you said twice that you cannot tell anything about the signer’s belief from the mere signature.

You said it could be support for — for the proposition or it could be just support for letting the people decide.

James Bopp, Jr.:

–That is–

Ruth Bader Ginsburg:

Or it could even be, you say, that this solicitor is pesky, and in order to placate the solicitor, to get rid of the solicitor, we’ll just sign.

So you — you have said that — that the signing itself is ambiguous.

You don’t know what the reason is.

It doesn’t necessarily mean that the person is a supporter of the proposition.

James Bopp, Jr.:

–But, with all due respect, we did not say the third.

We did say the first and the second.

And — but either of those are political statements.

The highlighted box at the top, you know, states — states that by signing R-71, we can reverse that decision, meaning the passage of a law, and protect marriage between a man and a woman.

Ruth Bader Ginsburg:

May I call your attention to page 20 of your reply brief?

Because I don’t think that your response was correct.

You say: Do petition signers support the repeal, simply indicate they would like public election to be held, or simply sign to avoid any further discussion with the petition circulator?

James Bopp, Jr.:

I acknowledge that we said that, Justice Ginsburg.

And, of course, the second statement is — and which I think is the dominant statement and certainly sufficient — and that is that we want a measure to be placed on the ballot in order for the people to vote.

That is one of the central–

Samuel A. Alito, Jr.:

Well, Mr. Bopp, if a voter — if the legislature passes a statute and someone is — is satisfied with that statute, how likely is it that that person is going to sign a petition to have a referendum to see whether the statute should be blocked?

James Bopp, Jr.:

–I think it’s very unlikely.

But it — we acknowledge it’s possible, but we think it’s very unlikely.

Samuel A. Alito, Jr.:

It’s possible–

Anthony M. Kennedy:

But–

Samuel A. Alito, Jr.:

–but if you were in the real world, if you were to poll the people who sign a referendum petition with respect to a statute that was passed by the State legislature, what percentage do you think would be opposed to that legislation?

James Bopp, Jr.:

Very few.

Anthony M. Kennedy:

–And so Justice Alito’s question points out that this would be a very slim basis upon which to rest a holding in your favor.

And just to go back to the line of questions of the first, the State of California has very complicated referendum and initiative matters.

Anthony M. Kennedy:

Don’t you think it’s relevant for the public to know that, say, a public employees union had paid solicitors to put those signatures on the ballot, or that the Chamber of Commerce or the National Association of Manufacturers had paid solicitors to put this on the ballot?

Isn’t that part of assessing the — the reasons why this initiative was proposed?

And isn’t that vital to the voters — to the voter in making an informed decision?

James Bopp, Jr.:

Well, actually, after your Buckley II decision, the Ninth Circuit struck down the requirement of disclosing the paid circulators.

And, of course, in California, petitions are not public.

Ruth Bader Ginsburg:

They did that.

It wasn’t due to Buckley II, because as you just acknowledged, under Buckley II, the solicitor is disclosed.

James Bopp, Jr.:

Well, the Ninth Circuit thought it was Buckley–

Anthony M. Kennedy:

Correct me, but the point is, isn’t — isn’t there an interest in knowing this information?

Not — not that it’s paid.

James Bopp, Jr.:

–There is no evidence–

Anthony M. Kennedy:

We’ll leave that out.

But — but to know that — that — the persons that supported the amendment.

James Bopp, Jr.:

–There’s no evidence in the record that that is pertinent information, and, at most, we think it is marginal information.

Sonia Sotomayor:

Counsel, if we create this right of — this constitutional right of association in the manner that you are describing it, why is it limited to the voting area?

Would we be inviting review if a group of citizens get together and send a letter to an agency that says please pass X regulation, or rescind Y regulation?

Would the agency be prohibited from making that letter public?

James Bopp, Jr.:

Well, potentially.

And — and this Court — I — because it would be required to be subject to a First Amendment analysis.

It’s this Court that created, in the NAACP case–

Sonia Sotomayor:

So you’re — you’re suggesting–

James Bopp, Jr.:

–the right of private association.

Sonia Sotomayor:

–that when a petitioner or a person engages in political discourse with the government, that they — when they choose to do it, because the government is not compelling them to write to it; it’s not compelling them to sign the referendum.

It’s just–

James Bopp, Jr.:

And they’re not compelling Ms. McIntyre to distribute her brochure, either.

But this Court held that–

Sonia Sotomayor:

–But it’s — but Ms. McIntyre wasn’t asking the government to engage its process in her favor.

She was asking for political reform, but she wasn’t asking to engage the government process on her behalf.

James Bopp, Jr.:

–Well, the government, you know, has a lot of options.

For instance, they don’t have to conduct elections for the election of judge.

James Bopp, Jr.:

But if they opt to do that and provide that procedure, well, then, the First Amendment applies to the political speech–

Samuel A. Alito, Jr.:

Well, to follow up on Justice Sotomayor’s question, do you think an agency could say, if you want to comment on proposed — on a proposed rule, you have to disclose to us your name and your address and your telephone number and your political affiliation, and all sorts of — your marital status and your income level and all sorts of other demographic information?

James Bopp, Jr.:

–And your employer, as in this case here.

Samuel A. Alito, Jr.:

Could they do that?

James Bopp, Jr.:

No — no, because there is no sufficient governmental interest that would justify it.

Antonin Scalia:

Not even just your name, so they can check that this thing isn’t phony and that all the names on it aren’t — aren’t made up by one person?

James Bopp, Jr.:

They, of course, can — can check that.

Antonin Scalia:

Of course, they can.

So they can get your name, right?

James Bopp, Jr.:

Yes, they can get your name–

Antonin Scalia:

Okay.

James Bopp, Jr.:

–and we’re not objecting to filing of a petition.

Antonin Scalia:

But you’re objecting to the public being able to check whether the agency is indeed finding out whether this is a genuine petition or not, correct?

James Bopp, Jr.:

No.

No, I’m not objecting to that.

Antonin Scalia:

Really?

James Bopp, Jr.:

They have procedures to check and verify these signatures that do not involve public disclosure.

Antonin Scalia:

Didn’t you have some options, too?

Have you started a referendum to repeal the — the California law that requires disclosure?

James Bopp, Jr.:

California law does not require disclosure of the petitions, and that has been upheld by the courts of California.

And you can verify these signatures.

Antonin Scalia:

I don’t understand.

I thought that’s what you’re challenging.

The–

James Bopp, Jr.:

Well, but you asked about California–

Antonin Scalia:

–I’m sorry.

I’m sorry.

James Bopp, Jr.:

–if I heard your question.

Antonin Scalia:

Washington.

I got the wrong State.

James Bopp, Jr.:

Okay.

It–

Stephen G. Breyer:

Can you go back–

Antonin Scalia:

The people of Washington — the people Washington evidently think that this is not too much of an imposition upon people’s courage, to — to stand up and sign something and be willing to stand behind it.

James Bopp, Jr.:

–In a sense–

Antonin Scalia:

Now, if you don’t like that, I can see doing it another way.

But — but the people of Washington have chosen to do it this — this way.

James Bopp, Jr.:

–Actually, for–

Antonin Scalia:

And you’re saying that the First Amendment absolutely forbids that.

James Bopp, Jr.:

–Actually, for a century, they chose not to do this.

It wasn’t until 2006–

Antonin Scalia:

That’s fine.

Proving my point.

James Bopp, Jr.:

–They did not publicly disclose the petitions for a century.

Antonin Scalia:

It might have been a good idea.

James Bopp, Jr.:

Well–

John G. Roberts, Jr.:

I suppose the — a majority of the voters in Washington decided that, and one of the purposes of the First Amendment is to protect minorities.

James Bopp, Jr.:

–Well, only in the most general sense.

They adopted a Public Records Act.

They didn’t adopt a law that specifically required the disclosure of these petitions.

But in a general sense, they did.

Ruth Bader Ginsburg:

Mr. Bopp, this is not a peculiar thing to the State of Washington; that’s correct, isn’t it?

Aren’t there about 20-odd States that require disclosure of the names of signers to initiatives, referenda?

James Bopp, Jr.:

That is true.

Some — some in their initiative and referendum statute, because they actually provide some public input on verification where Washington does not; others under their Public Records Act.

Some do not, such as California.

Ruth Bader Ginsburg:

So — but what you’re saying with respect to Washington would go for most of those other States that have — that have public disclosure of initiative and referendum petitions.

James Bopp, Jr.:

Well, one — one thing we say is different between Washington and these other States is that Washington provides no way for the public, even if they get access to the petitions, to participate in the verification process.

The only thing the public can do is have — observe — a limited number of observers.

These observers are prohibited from–

Ruth Bader Ginsburg:

I thought that there were instances where the State official missed something and a member of the public who had access to the list of signers said: Wait a minute; I know so-and-so was my neighbor who died 5 years ago.

James Bopp, Jr.:

–That’s not allowed in the State of Washington.

The instructions from the Secretary of State is while you can have observers to observe the process, the people–

Ruth Bader Ginsburg:

But you mean if — that was over.

It passed the screen of the Secretary of State.

It’s disclosed to the public.

If someone then said you’ve got a lot of dead souls on these lists, the State would do nothing about it?

James Bopp, Jr.:

–There is absolutely no procedure under Washington statute to do anything with that information.

Ruth Bader Ginsburg:

Well, we’ll ask — we’ll ask the–

James Bopp, Jr.:

Nothing.

Ruth Bader Ginsburg:

–We’ll ask the Attorney General of Washington.

James Bopp, Jr.:

Yes.

Sonia Sotomayor:

Weren’t two of the Petitioners here — weren’t two of the Petitioners here seeking the list so that they could go over the certification process the State had done to ensure that they had certified all the right people, et cetera?

James Bopp, Jr.:

Well, one of — one of the intervenors sought an exception from the — from the injunction, which we did not object to, that — that they would have access to the list.

But under confidentiality and protective order–

Sonia Sotomayor:

I’m not going to the privacy questions.

You responded to Justice Ginsburg by saying that there was no way to challenge the State’s process of validation, and that — I don’t think that’s correct.

James Bopp, Jr.:

–With all respect, I didn’t say that.

Sonia Sotomayor:

Oh.

James Bopp, Jr.:

What I — what I said is there’s no role for the public in verifying signatures.

You can ask for judicial review–

Sonia Sotomayor:

That’s assuming the answer, meaning if they don’t have the right to access, they can’t.

But, legally, they can challenge it if they find on the petitions that things were erroneously counted by the State.

They can go into court and prove that.

James Bopp, Jr.:

–The only thing that they could do is request that the court does its own count.

In other words, there’s judicial review available.

But the public has no role in the verification, but they can trigger judicial review.

And then the court conducts its own count.

In other words, this is not an adversary process in which people come in and present evidence of — of people’s — of invalid signatures.

Ruth Bader Ginsburg:

Why would you involve the court?

Ruth Bader Ginsburg:

If the State’s — the executive representative of the State says: Oh, we missed that.

Now we’re going to have to deal with it.

We don’t need any court to order us to do it.

James Bopp, Jr.:

Well, the observers can observe the process, and if they feel–

Ruth Bader Ginsburg:

No, this is after the observers.

This is–

James Bopp, Jr.:

–Well, but–

Ruth Bader Ginsburg:

–We’re talking about a member of the public noticing that there are people on the list who shouldn’t be there.

James Bopp, Jr.:

–Well, the — the observer — under the Washington procedure, observers can observe the process, and if they feel, or if anyone feels, that there has been an inadequate job in — in verification, then they can ask for judicial review.

And then the court conducts the–

Ruth Bader Ginsburg:

Why would they ask for judicial review instead of going first to the State’s Attorney General and saying, look, you — your people missed it?

James Bopp, Jr.:

–Well, there’s no procedure for that.

Ruth Bader Ginsburg:

Why involve the court?

James Bopp, Jr.:

That’s not — there’s no procedure for that.

You know, if they wanted to involve the public — and that’s the difference, I said, between this procedure and other procedures.

They’re claiming the need for public disclosure so the public can be involved in verification.

Well, there’s no procedure–

John Paul Stevens:

Isn’t there another–

James Bopp, Jr.:

–to be involved in verification.

John Paul Stevens:

–Isn’t there another possible public interest?

Would it be a legitimate public interest to say I’d like to know who signed the petition because I would like to try to persuade them that their views should be modified?

Is there a public interest in encouraging debate on the underlying issue?

James Bopp, Jr.:

Well, it’s possible, but we think this information is marginal.

In other words, the — it’s much more important–

John Paul Stevens:

Well, it does identify people who have a — a particular point of view on a public issue.

And if you had the other point of view, don’t you have an interest in finding out who you’d like to convince to change their minds?

James Bopp, Jr.:

–Well, we — we think it’s a — a very marginal interest.

The Ninth Circuit recently ruled that if you give a small contribution to an initiative, there’s not — I mean, nobody cares.

So why should it be publicly disclosed when it’s so marginal?

Antonin Scalia:

What about just — just — what about just wanting to know their names so you can criticize them?

Antonin Scalia:

[Laughter]

James Bopp, Jr.:

Well–

Antonin Scalia:

Is — is that such a bad thing in a democracy?

James Bopp, Jr.:

–Well, what is bad is not the criticism; it’s the public — it’s the government requiring you to disclose your identity and beliefs.

Antonin Scalia:

But part of the reason is so you can be out there and be responsible for the positions you’ve taken.

James Bopp, Jr.:

Well, then why don’t they require both sides?

Antonin Scalia:

So that people — people can criticize you for the position you have taken.

James Bopp, Jr.:

Then why don’t they require both sides if that was the purpose?

Antonin Scalia:

What do you mean, “both sides”?

The other side hasn’t signed anything.

When they sign something–

[Laughter]

James Bopp, Jr.:

Well, but the other side–

Antonin Scalia:

When they sign something, they’ll be out there for public criticism as well.

James Bopp, Jr.:

–Okay.

But this is a one-way street.

Antonin Scalia:

Oh, this is such a touchy-feely, oh, so sensitive about — about any–

[Laughter]

You know, you can’t run a democracy this way, with everybody being afraid of having his political positions known.

James Bopp, Jr.:

I’m sorry, Justice Scalia, but the campaign manager of this initiative had his family sleep in his living room because of the threats–

Ruth Bader Ginsburg:

Well, then that’s–

Antonin Scalia:

Well, that’s bad.

The threats should be moved against vigorously–

James Bopp, Jr.:

–And — and–

Antonin Scalia:

–but just because there can be criminal activity doesn’t mean that you — you have to eliminate a procedure that is otherwise perfectly reasonable.

James Bopp, Jr.:

–But all we’re asking for is a First Amendment analysis of the compelled disclosure of the identity of these people and whether or not these interests are sufficient.

Could I reserve the balance of my time?

John G. Roberts, Jr.:

Thank you, Mr. Bopp.

General McKenna.

Robert M. McKenna:

Mr. Chief Justice, and may it please the Court: I’d like to begin with the question of how the public can bring to the attention of the government that errors and fraud have been discovered.

Robert M. McKenna:

First of all, it’s important to understand that the petitions do not become public records after the verification process but, in fact, are made available as public records before the verification process even begins.

This is because the Secretary of State’s first step after receiving submitted petitions is to take them to his archiving section and to have them digitized.

As soon as they’re digitized, they’re available on disks for anyone who requests them.

Then the verification process begins.

During the verification process, it is possible–

Sonia Sotomayor:

How much time are we talking about in those processes?

Robert M. McKenna:

–The verification process, Justice Sotomayor?

Sonia Sotomayor:

Yes.

Robert M. McKenna:

The verification process will depend on how many signatures have been submitted–

Sonia Sotomayor:

No, no, no.

I’m trying to get the relationship between the disks being made available and the verification process.

So is there a time for the public to look through the disks before the people who are sent into the room are sent into the room?

Ruth Bader Ginsburg:

That’s what you’ve just said–

Robert M. McKenna:

–Yes, they’re–

Ruth Bader Ginsburg:

–that they’re — that they are immediately available on the disk, and so while the checking is going on by the Secretary, the public has the list.

Is that what you’ve just said?

Robert M. McKenna:

–Yes, that’s correct.

For example, in the case of Referendum 71, the proponents of the referendum submitted the petition sheets on Saturday, July 25, 2009, and on Tuesday, July 28, a records request was already submitted.

And so they can obtain records–

John G. Roberts, Jr.:

Would these records–

Anthony M. Kennedy:

Was that pursuant to the Public Records Act that we’re talking about–

Robert M. McKenna:

–Yes.

Anthony M. Kennedy:

–or was that part of the initiative and referendum structure before the Public Records Act was passed?

Robert M. McKenna:

Justice Kennedy, this is part of the Public Records Act.

This is as a result of the Public Records Act that these petition sheets are made available.

John G. Roberts, Jr.:

–Counsel–

Anthony M. Kennedy:

So — all right.

So this — the public record — pardon me.

The — in California, we call it an initiative and referendum process — existed and was in place before the Public Records Act added this additional feature of disclosure?

Robert M. McKenna:

Yes, that’s correct.

Anthony M. Kennedy:

So there was a judgment at one time by the State of Washington that it didn’t — that it didn’t need the public records disclosure?

Robert M. McKenna:

Well, when the initiative and referendum processes were created by public vote on a constitutional amendment of 1912, there was no Public Records Act at all.

And the Public Records Act, an Act of general applicability, was adopted by the voters in 1973 as part of an initiative which also enacted comprehensive campaign finance reform.

John G. Roberts, Jr.:

–Counsel, if the State had a law that you could disclose voters and for whom they voted, would that implicate First Amendment interests?

Robert M. McKenna:

Yes, Mr. Chief Justice, we would — we do believe that First Amendment interests would be implicated by revealing how people voted, and we don’t see a legitimate State interest in knowing how people voted, only in who voted–

Antonin Scalia:

So the country was acting unconstitutionally for a whole century before we adopted the Australian secret ballot?

Do you really think that?

Robert M. McKenna:

–No.

No, Justice Scalia.

I–

Antonin Scalia:

That it was unconstitutional–

Robert M. McKenna:

–No, Justice Scalia.

Antonin Scalia:

–for a whole century not to have a secret ballot?

Robert M. McKenna:

No, Justice Scalia, I didn’t say that I thought that the secret ballot was constitutionally required.

I was asked by the Chief Justice whether some First Amendment interests would be implicated.

They probably would be.

John G. Roberts, Jr.:

What would the First Amendment interests be?

Robert M. McKenna:

Well, the First Amendment interest in how you vote?

John G. Roberts, Jr.:

Yes.

Robert M. McKenna:

You know, it might be implicated by a potential chill from voting, if you know your vote is going to be revealed.

John G. Roberts, Jr.:

Do you think having your name revealed on a petition of this sort might have a chilling effect on whether you sign it?

Robert M. McKenna:

Mr. Chief Justice, some chill may result, just as some chill may result from having your campaign contributions disclosed or the fact that you have registered to vote and provided your name, address, your voting history is being disclosed.

So some chill might be — might result, but we do not think that it is significant enough.

John G. Roberts, Jr.:

You don’t think revealing that you’re a voter has the same chilling effect as revealing how you voted, do you?

Robert M. McKenna:

No, I do not.

I think how you voted would have a much greater chilling effect than the fact that you are registered to vote.

And — and, of course, this Court has not ruled on whether the secret ballot is, you know, a constitutional right.

If — if it is, then is town hall voting in New England unconstitutional?

Is the caucus system in Iowa for presidential candidates unconstitutional?

The Court in this case does not have–

Samuel A. Alito, Jr.:

–in the last questions–

John G. Roberts, Jr.:

Well, I thought you told me that the First Amendment interests were implicated with respect to the secret ballot, that you couldn’t require people to reveal how they voted.

Robert M. McKenna:

–We don’t — we don’t know if this Court would rule that the vote could never be revealed.

We know that in some places, votes are done in public.

We know that before the late 1800s, there was no secret ballot.

We just — we don’t know what the constitutional ruling would be.

But we — we do know that in this case, it’s not necessary for the Court to reach that — that determination, because in this case–

Samuel A. Alito, Jr.:

–Well, I’d like to know how far you — you are — you want to go.

You say in your brief that the availability of the referendum signature petitions allows Washington voters to engage in discussion of referred measures with persons whose acts secured the election and suspension of State law.

So would — would it be consistent with the First Amendment to require anybody who signs a petition to put down not just the person’s name and address, but also telephone number, so that they could be engaged in a conversation about what they had done?

Robert M. McKenna:

–It — it would depend on the strength of the State interest in having the telephone number.

The State does not have an interest in the telephone number on the petition form, because the State has — only needs to know from the petition form the name and the address in order to verify–

Samuel A. Alito, Jr.:

I thought that you were saying that one of the interests that’s served by this is to allow people who — to allow Washington citizens to discuss this matter with those who signed the petition.

So putting down the telephone number would assist them in doing that.

Robert M. McKenna:

–It — yes, it probably would make it easier for people to contact.

Samuel A. Alito, Jr.:

So you would–

Robert M. McKenna:

But the policy–

Samuel A. Alito, Jr.:

–You would endorse that?

Robert M. McKenna:

–That would be a policy determination for the legislature to make, Justice Alito.

Samuel A. Alito, Jr.:

No, I’m not asking the policy question.

I’m asking whether the First Amendment would permit that.

Robert M. McKenna:

I believe it could permit that, yes, Justice Alito.

Samuel A. Alito, Jr.:

Now, one of your Co-Respondents says that supplying this information provides insight whether support comes predominantly from members of particular political or religious organizations.

Would it be consistent with the First Amendment to require anybody who signs a petition to list the person’s religion?

Robert M. McKenna:

No, I do not believe it would, Justice Alito.

Stephen G. Breyer:

Suppose that in 1957 in Little Rock, a group of Little Rock citizens had wanted to put on the ballot a petition to require the school board to reopen Central High School, which had been closed because there was a sentiment in the community that they didn’t want integration.

And it was pointed out that if they signed this petition, there was a very good chance that their businesses would be bombed, that they would certainly be boycotted, that their children might be harassed.

Now, is there no First Amendment right in protecting those people?

And if there is, how does it differ from your case?

Robert M. McKenna:

Justice Breyer, that is count 2.

Robert M. McKenna:

That is count 2 of the Petitioners’ complaint.

This Court ruled as recently as Citizens United that such situations should be evaluated on a case-by-case basis to evaluate the reasonable probability of threats, harassments, and reprisals.

But that–

Antonin Scalia:

So you — you would have no objection to as an-applied challenge to disclosing the names of individuals to a particular cause, where it is demonstrated that the opponents of that cause are violent and will do violence to the people who signed the petition?

Robert M. McKenna:

–Yes, Justice Scalia.

That would be the Socialist Workers Party case.

This — this Court has ruled that, on a case-by-case basis, it is possible that some information otherwise disclosed–

Anthony M. Kennedy:

What about a business boycott?

Antonin Scalia:

So this is just a general challenge to ever, ever disclosing the names of petition signers?

Robert M. McKenna:

–Of any type of petition including nominating petitions–

Antonin Scalia:

Right.

Robert M. McKenna:

–initiative petitions, and the rest.

Anthony M. Kennedy:

What about a business boycott?

Suppose that were a — a likely outcome of disclosing the name?

Robert M. McKenna:

Well, of course, boycotts have been upheld under the First Amendment in Claiborne Hardware, and so if someone wanted to boycott a business because it turned out that the manager of the business had been a supporter of a particular ballot measure, that would be allowable, of course, to that person choosing to boycott.

John G. Roberts, Jr.:

Counsel, your answer to Justice Breyer was that they can bring an as-applied challenge.

Now, that as-applied challenge would be small comfort unless the names were protected pending the resolution of that challenge, correct?

Robert M. McKenna:

Yes.

John G. Roberts, Jr.:

So you think a stay should be granted in this case to allow the Petitioners to pursue an as-applied challenge.

Robert M. McKenna:

Yes, of course — yes, they could apply for another preliminary injunction if this Court upholds the court of appeals.

They were able to obtain that preliminary injunction in this case, which is why these petition forms have not been released to date, except under a protective order by the court to the opponents.

Ruth Bader Ginsburg:

And that would–

John G. Roberts, Jr.:

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?

Robert M. McKenna:

We — there is no evidence of that in the record.

There’s no evidence–

Ruth Bader Ginsburg:

–Does — is it–

John G. Roberts, Jr.:

There’s no evidence — there’s no evidence of episodes of violence or intimidation?

Robert M. McKenna:

–Involving the Referendum 71 signers?

No.

The evidence in the record is about people who were out circulating petitions, people who were out, you know, campaigning for the petitions, the campaign manager for the measure.

Robert M. McKenna:

But none of the evidence in the record speaks to petition signers, and none of the evidence in the record speaks to petition signers for other, similar measures which were cited by the Petitioners.

Ruth Bader Ginsburg:

–Is that because nobody got to count 2?

And the district court — this whole case in the lower courts was on count 1 alone; wasn’t that so?

Robert M. McKenna:

Yes, that is — yes, that is correct.

Ruth Bader Ginsburg:

And count 2 is the one that deals with the harassment.

Robert M. McKenna:

That is true, Justice Ginsburg.

Of course, in several other States, Arkansas, Florida, and Massachusetts, which had similar measures regarding gay civil rights or same-sex marriage on the ballot — in those three States, the petition forms were obtained under public records, were put on the Internet, and no evidence has been provided that’s in the record that anyone who signed any of those petitions in those three States was subjected to harassment–

Samuel A. Alito, Jr.:

Well, let’s say somebody is thinking of circulating a petition on a sensitive subject and fears that people may be dissuaded from signing because they fear retaliation.

At what point could they bring this as-applied challenge?

Do they have to — could they do it before they even begin to circulate the petition, arguing that if — if these names — if people are not assured ahead of time that their name and address is not going to be revealed to the public on the Internet, they’re not going to sign this?

Robert M. McKenna:

–Justice Alito, it would be possible procedurally for them to bring the motion for an injunction even before collecting the signatures–

Samuel A. Alito, Jr.:

And how would they–

Robert M. McKenna:

–if they had sufficient evidence.

Samuel A. Alito, Jr.:

–How would they prove that there’s — that there’s a — a threat, a sufficient threat of harassment in that particular case, before the petition is even signed?

Robert M. McKenna:

I believe that the sponsors of the measure would bring to the court evidence, if they have any, of — because of the controversial nature of that particular measure, that is based on what’s happened to some of the people who were planning to put the measure on the ballot.

Antonin Scalia:

But — but you — you’ve rejected that here.

You’ve said there’s no evidence here that any of the petition — petition signers were subjected to any harassment.

Robert M. McKenna:

Right.

Antonin Scalia:

Of course there isn’t, because the names haven’t gotten out yet.

How could you possibly demonstrate before the names get out that petition signers are going to be subjected to harassment?

Robert M. McKenna:

One could look to–

Antonin Scalia:

Or otherwise, don’t insist upon evidence that these very petition signers will be harassed.

Robert M. McKenna:

–I imagine, Justice Scalia, that the individuals moving for that preliminary injunction would do what the Petitioners have done in this case.

They would cite to an example from another State involving a comparable measure.

Antonin Scalia:

And you think that would be an acceptable type of evidence?

Robert M. McKenna:

They could bring it into the court.

I’m not saying the court would accept it, because I don’t know–

Antonin Scalia:

Well, if you don’t think it’s acceptable, then — then — then you’re not making an argument.

Robert M. McKenna:

–Justice Scalia, I didn’t say it couldn’t be acceptable.

I’m saying this is a hypothetical, so I don’t know what the evidence would look like in the hypothetical example.

Samuel A. Alito, Jr.:

Well, the — the hypothetical is that before this petition is circulated, the supporters came into court, and they said: Look what has happened in California with — with Proposition 8.

Don’t disclose — enter an order prohibiting the public disclosure of the names and addresses here.

Would that be sufficient?

Robert M. McKenna:

Justice Alito, I think that the evidence would have to be very strong.

It would have to rise above criticism.

I think it would have to rise to the level of threatened violence.

It would have to rise to the level of the Socialist Workers Party case, for example, or the NAACP case.

I think the standard would be very high.

But it would be up to the trial judge to decide whether or not the evidence was sufficient to issue the preliminary injunction.

Ruth Bader Ginsburg:

Is it — the State has had this procedure now for some time, and there have been controversial ballot initiatives.

Is there any history in the State of Washington that signers have been subject to harassment?

Robert M. McKenna:

There has not, Justice Ginsburg, and that’s even though a half a dozen initiatives on a variety of topics have been released.

Another half dozen are pending.

John G. Roberts, Jr.:

What — what’s the most sensitive similar petition for a referendum?

Robert M. McKenna:

There has been no measure on domestic partner benefits or same-sex marriage in Washington State–

John G. Roberts, Jr.:

No, but what’s the–

Robert M. McKenna:

–but there are other–

John G. Roberts, Jr.:

–What’s — what’s the other one that’s going to get people — that’s the most controversial public issue?

Robert M. McKenna:

–Justice–

Sonia Sotomayor:

Proposition 8?

Robert M. McKenna:

–Well–

John G. Roberts, Jr.:

No, I’m talking about in Washington, counsel.

Robert M. McKenna:

–In Washington State.

Mr. Chief Justice, we have had measures on assisted suicide, for example, which was very controversial, and — and there’s no evidence involving that set of petitions.

John G. Roberts, Jr.:

Was the referendum in favor or opposed to assisted suicide?

Robert M. McKenna:

It was — well, the referendum challenges the assisted suicide law.

So if you vote for the referendum, you vote to uphold the legislature’s adoption of that law, which — which allowed assisted suicide.

So there have been controversial measures.

Anthony M. Kennedy:

This case will likely be controlled by our First Amendment precedents, because that’s the most fully developed.

Did you look at the Petition Clause at all?

Anthony M. Kennedy:

In the early days of the republic, the petitions were the way in which you communicated with your legislator.

Robert M. McKenna:

Yes.

Anthony M. Kennedy:

And I tried to look it up.

I have a recollection, but I’m not sure, that those petitions were sometimes put in the Congressional Record.

But did you look at the history of the Petition Clause?

Robert M. McKenna:

Justice Kennedy, we have considered the history of the Petition Clause, and we see a basic difference between the kinds of petitions under the Petition Clause and the petitions at issue here because, essentially, petitioning the government under the Petition Clause is asking the government to do something.

You’re petitioning them: Please do something.

The petitions for a referendum or an initiative are telling the government to do something.

The petition form says that I, the signer, am directing the Secretary of State to conduct an election.

And by submitting these petitions in a referendum, I am suspending the law which the legislature has already approved until the election has taken place.

Tell versus ask.

I think that’s a pretty big — a significant difference.

Anthony M. Kennedy:

But, of course, that can cut the other way, too, because then it’s more like a vote.

And there — there is strong interest in keeping the — the vote private.

Robert M. McKenna:

And, Justice Kennedy, I’d like to speak to that question, because several Justices asked: Well, what can we tell from what, you know, someone who signed?

Do we know how they’re going to vote.

I — I agree that many people signing a petition are going to vote in favor of — in the case of an initiative, in favor of the law the initiative would put on the ballot.

But also we know from the social science research, which is cited, for example, in the Direct Democracy Scholars green brief, that many people sign simply because they believe it’s important for the — for the public to have an opportunity to vote.

And, of course, as the Petitioners have acknowledged and we also point out, some people vote just to get around the circulator and get into the store.

John G. Roberts, Jr.:

What percentage — what percentage of the people who signed this petition to put this law on the referendum do you think signed it because they think these sort of things should be generally put to a public vote as opposed to because they opposed the law?

Robert M. McKenna:

The percentage of people who believe simply that there should be a vote held has not been quantified by the research, except that several scholars indicate that it is significant.

So, whether it’s 20 percent or 40 percent, I — I really can’t say within a certain–

John G. Roberts, Jr.:

You think as much as 20 percent of the people who signed this petition are actually in favor of the law that it’s aimed to repeal?

Robert M. McKenna:

–It is possible.

But it’s also possible some of those 20 percent don’t have an opinion on the law, Mr. Chief Justice.

They simply think that there should be a vote held, and they’ll make their mind up later on.

There are plenty of people who aren’t aware when certain laws are — are adopted that are subjected to a referendum, and they may not have decided at all.

In fact, one of the reasons they may sign the petition is to say: Well, I’m not sure how I’m going to vote, but, you know, I think a public vote would be a good idea.

So, I’m going to let it go forward to be on the ballot, and I’ll decide.

Samuel A. Alito, Jr.:

Can I ask you this question?

Samuel A. Alito, Jr.:

It seems to me your — the strongest State interest here is detecting fraud.

And you mentioned that the records are digitized.

And maybe you can correct my impression of this, but it seems to me that if the records are digitized, there are very simple ways of detecting fraud that would not require the disclosure of the list to the public.

If somebody wants to see whether his or her name has been fraudulently put on the list, wouldn’t it be very simple to set up a Web site where the person could put in a little bit of identifying information and see whether that person’s name is on the list?

And if the — the purpose is to see whether a particular person lives at a particular address, couldn’t you just cross-reference by means of a computer program the information on the referendum with the — with the voting lists?

So if you’ve got John Jones who lives at 10 Main Street, you see whether there really is a registered voter John Jones who lives at 10 Main Street?

Why does this all have to be put out on the Internet?

Robert M. McKenna:

Justice Alito, the — just to be clear, you are right.

They do use computer — computers because when — in the verification process, the Secretary of State’s staff, with the observers looking over their shoulder, will look at the petition and look up that voter in an — in an electronic voter registration database.

This is exactly why the information is so useful to the public as well.

They have access to electronic online voter registration history as well, and they can also check.

In — in Massachusetts, under their public records law in 2006, petition forms obtained by public records requests were put online, and over 2,000 people, as has been documented in the Lambda amicus brief, discovered that they — their names are on petitions that they claimed did not sign, and discovered that they had been, in some cases, misled.

Samuel A. Alito, Jr.:

Well, what’s the answer to my question?

Couldn’t you — couldn’t this be done very simply?

If I want to see whether somebody has fraudulently signed my name, very quickly go to a Web site, wouldn’t be expensive to set up, put in your voter ID number, and see whether — and your name, and see whether you’re on the — on the–

Robert M. McKenna:

Yes.

Samuel A. Alito, Jr.:

–whether you — somebody signed your name to the petition?

Robert M. McKenna:

Yes, Justice Alito, that — that could be done.

In our State and the other States that’s done when somebody requests the public records and chooses them to put online.

The State doesn’t — does not put the petition forms online itself, although, you know, other information is put online by the State.

Anthony M. Kennedy:

Do — do we take this case on the assumption — do you make the contention before us that the Secretary of State and those who assist it are not capable of determining whether the petition signatures are valid?

Robert M. McKenna:

No, we are not taking that position, Justice Kennedy.

Of course–

Anthony M. Kennedy:

I mean without public disclosure?

Robert M. McKenna:

–What we know, Justice Kennedy, is that in dozens of States around the — around the country, as recently as 2009 in Maryland, 2006 in Massachusetts, and so on, it was the — it was the public who requested ballot petitions by public records request who found significant fraud and error.

This isn’t just about fraud — fraud is very important — it’s also about finding plain old mistakes which the State, Secretary of State, or auditor has missed.

That — that does happen with regularity in this country, and we cite cases in our brief where error is not fraud, but errors in Washington State have been discovered by people who look at these public records.

And–

Antonin Scalia:

Sometimes the public may not trust the Secretary of State.

Robert M. McKenna:

–Yes, sir.

Robert M. McKenna:

Justice Scalia, we agree.

Antonin Scalia:

It — it may be an issue in which his administration has taken a particularly firm stand, and the public may not trust the job that the Secretary of State does.

Robert M. McKenna:

That goes to the heart to the Public Records Act, Justice Scalia: Trust but verify.

The people did not leave to the State the idea that, well, we’ll let you know what you need to know.

The people want a–

Antonin Scalia:

Trust but verify — I like that.

[Laughter]

Ruth Bader Ginsburg:

You did say something about this category of speech.

You said, well, this is in the category that — it’s like O’Brien.

It has speech elements and non-speech elements.

And I was trying to figure out which — what is it in the signature that speaks and what is it in the signature that doesn’t speak?

Robert M. McKenna:

–The speech element could be construed in the fact that someone has chosen to sign a petition which we know means they want something to be put on the ballot.

So, they favor having it on the ballot.

That — that much we know.

But we also looked to Burdick, of course, because in this — in — in the Burdick decision this Court held that write-in voting could be prohibited by the State of Hawaii.

That was upheld by the court of appeals and this Court.

And this Court found that writing in a candidate’s name was not even expressive conduct.

So we look to the Burdick level of intermediate scrutiny, to the O’Brien level of intermediate scrutiny for the test.

Justice Ginsburg, the other point I wanted to bring up is something about Buckley II, which–

Samuel A. Alito, Jr.:

Well, what is the — to finish your answer to Justice Ginsburg’s question, what is the non-speech component of signing a petition?

Robert M. McKenna:

–The non-speech component is suspension of law in the case of a referendum or the legislative effect.

We believe this is a legislative act fundamentally.

In–

Samuel A. Alito, Jr.:

And what’s the State’s interest in regulating the non-speech component?

When you — when you talk about the vote cast by an elected representative, of course, there’s a strong interest in knowing how an elected representative voted, because the representative is answerable to the voters.

But somebody who signs a petition isn’t answerable to anybody — any other citizen.

So what’s your interest?

Robert M. McKenna:

–The interest, Justice Alito, is knowing, first of all, that there were a sufficient number of signatures submitted to qualify the measure for the ballot.

Samuel A. Alito, Jr.:

It’s the fraud interest?

Robert M. McKenna:

That’s the fraud interest.

Robert M. McKenna:

And, secondly, there is a valid informational interest in knowing who is it exactly who’s calling for this election and suspending the–

Samuel A. Alito, Jr.:

Well, but how far does that go?

When I asked whether you could — you want to know the religion of the people who signed, no, you can’t do that.

How much more demographic information could be — could be — does the — does the State of Washington have an interest in making publicly available about the people who support this election?

Let’s say it’s — it’s a referendum about immigration.

Does the State of Washington have an interest in providing information to somebody who says I want to know how many people with Hispanic names signed this, or how many people with Asian names signed this?

Is that — that what you want to facilitate?

Robert M. McKenna:

–No, Justice Alito, we don’t need to know that.

We need to know whether there were a sufficient number of registered voters who signed — we need to know whether they signed more than once.

We need to know they are registered in Washington State.

Informational interest I think that you could — the information you could collect to satisfy informational interest might include other information that’s in the voter registration records.

You might want to know–

John G. Roberts, Jr.:

I thought one of the reasons you wanted to do this was so people would have information that would allow them to participate in the civic process, and there are people who — might think it makes a difference whether a referendum was requested by — primarily by members of a particular ethnic group or not.

So isn’t — doesn’t — I thought your brief would say the State has an interest in that type of disclosure.

Robert M. McKenna:

–I don’t see what the valid State interest would be of knowing the ethnicity of the person.

I mean, of course, anyone could look at the petition ballot forms and, I suppose, divine something about the ethnicity based on the last name, but the State’s interest doesn’t go — go to that.

That we — we don’t believe we need to know that.

We believe we need to know what is requested — required on the — on the petition form.

Samuel A. Alito, Jr.:

Then I don’t understand what information is being — what information you think you’re providing to the public.

Outside of the fraud area, if I see that John Jones from Seattle signed this petition, that tells me absolutely nothing.

Robert M. McKenna:

Well, Justice Alito, it might — if you know John Jones, that would tell you something.

Number two, we know from the — we know from the, you know, Direct Democracy Scholars green brief that intermediaries and especially the press and sometimes social science researchers and others will — will look at the names, and they’ll be able to tell, for example, that a large number of employees at one company signed a measure; maybe it’s a measure that would cut a tax break for a particular industry.

Or perhaps members of a union, in large numbers, have signed.

They have been–

John G. Roberts, Jr.:

How can they–

Robert M. McKenna:

–able to provide that information.

John G. Roberts, Jr.:

–How can they find that out with just the name and address, that a large number of people from a company signed it?

Robert M. McKenna:

Well–

John G. Roberts, Jr.:

You don’t have to put on who you work for, do you?

Robert M. McKenna:

–No, you do not.

Robert M. McKenna:

I’m saying intermediaries might discover this, for example, by taking a close look at who’s paying for the signature gathering.

If it’s paid signature gathering, they might be aware of prominent sponsors.

In fact, the — the importance of knowing who the sponsors is, is demonstrated–

John G. Roberts, Jr.:

I’m sorry.

I’m still on the companies.

How — how does knowing who the sponsors are tell you how many people from a particular company signed the petition?

Robert M. McKenna:

–Well, a voter who — who works at that same company or does business with that same company might know that, gosh, I know these employees, and they’ve — they have all signed this petition.

The press might be able to do the research to find that out.

Intermediaries do play an important role.

The last point, if I may, I wanted to make about — about Buckley II is that the Petitioners have stressed that Buckley II struck down the requirement to wear the name badge.

But in that same decision this Court upheld the requirement by Colorado that affidavits signed by the petition circulators, including the petition circulator’s name and address, can be disclosed as public records.

And the Court ruled that — found that and compared it favorably to the badge requirement because the disclosures of public record occurred after the heat of the moment, after the moment of interactive discussion.

It happened later on.

And we believe, of all the Court’s rulings, that — that approval of the disclosure requirement of the — of the affidavit, in contrast to the badges, is the most similar to requiring after the fact or allowing after the fact for petitions to be disclosed under the Public Records Act.

Samuel A. Alito, Jr.:

You know, if somebody called your office and said I’d like the — the home address of all the attorneys who work in the Attorney General’s Office because we want to — we want to go to their homes and have uncomfortable conversations with them–

[Laughter]

–which is what has been alleged here, would you release that information?

Robert M. McKenna:

We would not, Justice Alito.

We would not release it because they can come to the office and have uncomfortable conversations with them–

–which I can personally attest happens with some regularity.

[Laughter]

Antonin Scalia:

Isn’t that information, at least the names of those people — isn’t it probably public information anyway?

Robert M. McKenna:

Yes, it is, Justice Scalia.

Antonin Scalia:

Can it be obtained under the Freedom of Information Act in this case?

Robert M. McKenna:

Yes, it can.

Their names, their office locations, their office phone numbers, their office e-mails is all a matter of public record in our State.

Thank you very much.

John G. Roberts, Jr.:

Thank you, General McKenna.

Mr. Bopp, you have 2 minutes remaining.

James Bopp, Jr.:

Thank you.

James Bopp, Jr.:

First a clarification of what we sought in the preliminary injunction.

We were — we sought to base our preliminary injunction on both count 1 and count 2.

Of course, the district court and the Ninth Circuit did not reach — in either case — reach count 2.

Secondly, with respect to whether or not there’s any conduct here, I don’t think signing a written statement is conduct.

And, of course, by signing the statement, the person is adopting the statement on the petition, one of which involves their preference on the referendum, and the second is the — the request that the matter goes on the ballot.

And, of course, it has no legal effect unless 122,000 make the same political statement.

Third, evidence of harassment comes in, as in Citizens United, because the weight of the interest that is required depends upon the burden of the First Amendment — to the First Amendment speech involved; and this Court specifically referred in Citizens United to the lack of evidence of harassment of the donors that might occur if they were disclosed through the reports which Citizens United upheld.

Here we do have evidence of harassment, and we believe that that requires a greater burden in the First Amendment analysis–

Ruth Bader Ginsburg:

But that’s out of the case up till now.

That’s count 2.

You put it in your pleading, but it wasn’t reached by the court.

James Bopp, Jr.:

–Actually not.

Many is the case–

Ruth Bader Ginsburg:

So everybody agrees that that’s still in the case.

James Bopp, Jr.:

–Yes, but it is relevant to count 1.

Bates, for instance, looked to the evidence of harassment in protecting the membership list of the–

NAACP from disclosure.

Ruth Bader Ginsburg:

The court did not rule on whether there was a risk of harassment here.

James Bopp, Jr.:

Well, that–

Ruth Bader Ginsburg:

It dealt only with count 1.

James Bopp, Jr.:

–That is — that is true, Your Honor.

There are — there were several First Amendment claims made — made under count 1, and this decision was — was based on other claims.

I see my time is up.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Bopp.

The case is submitted.

The Honorable Court is now adjourned until monday next at [= 10 a.m.].