When the Court released its opinion in Doe v. Reed yesterday, the predictable acclaim was heard from folks ecstatic about using disclosure as a tool of political regulation. Is that ecstasy warranted? No, not from their point-of-view, anyway.
The Court numbers but nine Justices, and Doe includes seven separate opinions. Already you have probably guessed that something is afoot. What are the issues confounding our fair Court?
1. Facial challenges: The Court has been very hawkish about claims of facial unconstitutionality. Washington State Grange and Crawford are two prominent examples. The Court isn’t interested in litigants who want to extend their own burden in their situation to a host of other situations. So in Doe, the Court was disinclined to find that releasing the identities of petition signers is always and everywhere a violation of the First Amendment. Six of the nine Justices joined the Roberts opinion for the Court that said essentially this. Breyer might be on the margins however, as he also joined Stevens’s concurrence which stated, with doubtful credibility, that Doe presented an “easy” case even in its specifics.
2. What kind of law is this? Then there’s the dispute over what kind of law is this law, and thus what degree of scrutiny the Court should apply. Is it a burden on speech? Or an election administration case? Speech gets (typically) strict scrutiny (see Thomas), or if “just” a disclosure law, gets something called “exacting scrutiny.” If you take Roberts seriously that standard isn’t very exacting at all (Alito’s concurrence gives it more heft, n.b.). Election administration laws get reduced scrutiny that some call a sliding scale and others call a mess. The Roberts opinion for the Court is in the “speech but just disclosure” crowd; Sotomayor, with Stevens and Ginsburg joining, are in the “it’s election administration and the states get discretion” camp. Would those three justices feel the same when the election administration law at issue involves voter ID? is there sauce for the goose, but not for the gander?
3. Is the secret ballot a “right”? This is the explicit argument taken up and rejected in Scalia’s concurrence. For him, signing a petition isn’t speech at all, but a legislative act, although as Roberts’ opinion notes in a footnote, it’s hard to see why the two descriptions are mutually exclusive. Scalia relies heavily on the experience of the Founders that petitioning the government, and voting, were done in public. Yeah, those were the good old days, weren’t they? Polling precincts were run out of saloons, women couldn’t vote in most states (nor could members of several ethnic groups) and state poll tax records served as the registration lists. Now we have a broad franchise, relatively easy means for registering to vote, absentee balloting, early voting, and voting by … women! At the nation’s founding, the franchise was narrowly assigned, and it probably made sense to treat those with the franchise as “representatives” of a larger community and hold the publicly accountable. Today, people aren’t expected to vote as representatives, but to vote their own conscience, freely. Here’s a fascinating article discussing why sometimes voting should be secret, but other times not.
What might we expect of Doe v. Reed if or when it returns to the Court as an as-applied challenge, justifying injunctive relief because of the likelihood of harassment? There isn’t much leeway in what Scalia, Stevens, Breyer, Sotomayor and Ginsburg wrote here. Could the Doe litigants establish that the decision to release the petitions was based on viewpoint discrimination (after all, until 2006 the state didn’t do it ) or facilitated harassment? Then they might be able to pull Sotomayor and/or Ginsburg. Breyer seems content to let law enforcement deal with the harassment aspect (odd given his penchant for Active Liberty), and Scalia thinks people just need to be less sensitive.