UF researcher files brief with U.S. Supreme Court on ballot signatures
GAINESVILLE, Fla. — A group of scholars led by Daniel Smith, a University of Florida political science professor, filed a “friend of the court” brief today with the U.S. Supreme Court urging states be allowed to publicly disclose citizen signatures on ballot initiatives and referenda.
The case stems from a request by an organization in Washington state that signers of its proposal to retract gay rights not be disclosed to keep them from being harassed. Smith said the consequences of such secrecy could open ballot initiatives to fraud and call into question the public nature of other political information, including campaign finance contributions.
The case, Doe v. Reed, involves an unsuccessful Washington referendum to repeal a domestic partnership law that greatly expands the rights of gay couples known as the “everything but marriage” act. Protect Marriage Washington, an organization supporting traditional marriage that collected signatures to place the opposition measure on the ballot, sued the state when several groups asked that the petitioners’ names be released under public records law, claiming that exposure could lead to individuals being harassed.
Limitations to public records laws to prevent public disclosure of ballot signatures would have broad implications nationwide, Smith said.
“Florida law allows anyone to examine petitions that have been submitted to the county supervisor of elections,” he said. “That law will clearly be ruled unconstitutional if the Supreme Court agrees with those who are challenging the state of Washington’s law, and I think it opens the door for further challenges of other campaign related information, most notably campaign finance contributions and expenditures.”
Smith enlisted the help of three other scholars who have conducted research on initiatives and referendums in the American states, including the examination of fraud in the signature-collecting process. In addition to legal principles and case law, their “Brandeis” brief draws heavily on scientific evidence. Such a brief is named for Louis Brandeis, who filed such a brief to successfully defend a state law in the early 1900s limiting the maximum workday of female laundry workers. Smith’s group of scholars is represented by Joseph Sandler of the Washington D.C. law firm, Sandler Reiff and Young.
“I agreed to become involved in the case because I believe public disclosure serves a very strong government interest in allowing citizens to know whether or not the ballot petition process is free and fair,” said Smith, who is doing the work pro bono. He plans to attend the U.S. Supreme Court hearing in Washington, D.C., when oral arguments are presented April 28.
The ability to disclose names of petition signers provides assurance that the signatures are valid, helps to uncover fraud, gives recourse to voters misled into signing petitions under false pretenses and informs voters, often through an intermediary such as the news media, who a referendum’s supporters are, he said.
In many states that permit initiatives or referendums, there are well-documented cases of fraud in the signature-gathering process, much of which can be remedied only through public disclosure of the petition signatures, Smith said. In Florida during the 1990s, for example, names copied directly out of phone books and the names of deceased showed up among the signatures filed for a constitutional amendment, he said.
Another problem with keeping names secret is that citizens have been misled into signing petitions and they would have no opportunity to withdraw their signatures, Smith said. In Massachusetts in 2005, organizers of a campaign to outlaw gay marriage would present a petition to allow the sale of wine in grocery stores and then slip a petition banning same sex marriage underneath it, asking people to sign the second copy without telling them what it was, he said.
Smith said he disagrees with claims in the Washington state case that disclosing signatures on ballot petitions would have a chilling effect on political participation by making people afraid to sign petitions or suffer harassment if they did.
“Millions of people have signed ballot petitions over the years and one would be hard pressed to find any examples of people being harassed because of their signature,” he said. “In this case, not a single petition signer in the state of Washington has been identified who alleges any instance of harassment or intimidation.”
A signature on a petition is not the same as a vote for the measure, Smith said. People expect the same standard of openness when citizens use the petition process to pass laws, overturn laws or amend the state constitution that they do in the traditional legislative process, he said.