June 24, 2010

Initial Thoughts on Doe v. Reed

I have now had a chance to read the decision in Doe v. Reed. In broad brush strokes, the Court did what I predicted they would do: a broad majority voted that disclosure of the names of the signers of referendum petitions is generally constitutional, leaving open the possibility of an as-applied challenge should plaintiffs be able to prove on remand that they faced a realistic threat of harassment in this particular case if their names are disclosed. Though it was 8-1, Justice Alito's concurrence was almost a dissent, as I'll discuss more below. But the Court's set of opinions is fascinating. Here we have an 8-1 decision with 7 opinions: only Justices Ginsburg and Kennedy did not write separately. I want to talk about why that is, and also about some other fascinating pieces of the opinion.

1. Why Seven Opinions? Because the Court did not reach the second, as-applied question, that question is going to have to be considered on remand. At least one of the Justices (my bet would be on Justice Alito), saw fit to write about how the lower court should resolve that challenge, which caused the other Justices to chime in on the question as well. All of this dicta serves two purposes: (a) trying to influence what the lower courts would do on remand and (b) signalling to the rest of the Court where the Justices stand. On this question, we can divide the Justices into various camps. You have two Justices, Thomas and Alito, who will accept virtually any as-applied challenge, at least in cases involving hot button topics like same sex marriage. (Thomas, who believes disclosure is always unconstitutional would not draw Justice Alito's finer distinctions). You have five Justices, Stevens, Scalia, Sotomayor, Ginsburg, and Breyer, who believe the bar for showing enough harassment to get an as-applied exemption is quite high. (Though Justice Scalia does not see a first amendment right in this particular context, in the context of campaign finance disclosure---the elephant in the room---he's spoken for the need for "civic courage" and specifically wrote that "harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance.") (I presume a Justice Kagan would likely see things as Justice Stevens on this issue). Two Justices did not express an opinion on this issue: C.J. Roberts and Justice Kennedy, so we don't know how tough they'd be on a plaintiff seeking an as-applied exemption. But still, there appears to be a majority to read as applied exemptions narrowly, and it is a majority, with Justice Scalia, that crosses the usual ideological lines. (Cf. Rick Pildes's analysis.)

2. The Internet and Disclosure. Rick is right too that this is the first case where the Court begins to grapple with the cheap cost of disclosure of election-related information in the information age. Now you can make a mashup very cheaply to show with Google maps how your neighbors contributed to various campaigns, etc. We'll get a better sense in the next case (perhaps this case itself comes back on the as applied challenge) as to the kind of proof that will be necessary in the future in these cases given the rise of cheap Internet-fueled speech. I think technology issues can, and should, change the calculus for the disclosure of law money contributions.

3. Voting and the First Amendment. It seems to me that the majority opinion silently overrules earlier cases, including Burdick v. Takushi and Timmons v. Twin Cities Area New Party, rejecting the idea that voting is a form of First Amendment protective activity. The Court in those cases said that ballots are not fora for political expression. To me, this is a good development, but I expect various plaintiffs in ballot access cases and elsewhere will try to use the Doe discussion of voting and related activities as protected by the First Amendment to argue for increased access to the ballot, etc. Time to dust off your copy of Adam Winkler's important article, Expressive Voting.

4. The Anti-Fraud Interest. Though I was generally pleased with today's opinion, there is one part of the discussion, on anti-fraud measures, that I think could have pernicious effects on voter administration challenges. The Court writes that "The State's interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It "drives honest citizens out of the democratic process and breeds distrust of our government" Purcell v. Gonzalez, 549 U. S. 1, 4 (2006) (per curiam); see also Crawford v. Marion County Election Bd., 553 U. S. 181, 196 (2008) (opinion of STEVENS, J.)." Though there was good evidence of fraud in the context of collecting petition signatures, and it was a valid interest for disclosure of the names in this case, I've criticized the Purcell dicta about how fraud decreases voter turnout as wholly unsupported by evidence. It has the potential to be misused.

5. Political markets. Justice Stevens' separate opinion (with Justice Breyer) has a little gift for those who like the structural approach to election law cases (I'm not one of them). Check out footnote 3, which states that when a law appears to have been enacted without public regarding consideration to entrench political majorities, "we are less willing to defer to the institutional strengths of the legislature. That one may call into question the process used to create a law is not a reason to 'disregar[d]' 'sufficiently strong,' 'valid[,] neutral justifications' for an otherwise 'nondiscriminatory' policy. Crawford, 553 U. S., at 204. But it is a reason to examine more carefully the justifications for that measure." This was a statement of only two Justices, however.

There is much to mine from this fascinating set of decisions. More when I've digested it more.

Posted by Rick Hasen at June 24, 2010 11:22 AM