Posted by Eugene Volokh:
>From Not Dispositive To Irrelevant:
http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252678879
Here's a passage from [1]Doe v. Reed, the opinion I [2]criticized
below. I don't think the court needed to reach this issue, because I
think there's no need for strict scrutiny when state law chooses to
disclose the names of people who take legally operative steps such as
signing initiative, referendum, or recall petitions. But I want to set
that aside here, and focus on the argument the court made -- an
argument with a structure that I often hear (especially from law
students), and that bears a bit of explicit analysis:
In the alternative, Defendants assert that there exists a second
�compelling� interest in favor of disclosure. Defendants argue that
the electorate is entitled to know �who is essentially lobbying for
their vote, and thus, who likely will benefit from the measure.�
But this argument is unavailing because neither the Court nor the
parties have the ability to identify whether an individual who
supports referral of a referendum to the next ensuing general
election actually supports the content of the referendum or whether
that individual simply agrees that the referendum should be placed
before the voting public. In other words, the identity of the
person who supports the referral of a referendum is irrelevant to
the voter as the voting public must consider the content of the
referendum and be entitled to a process by which it can ensure that
the petitions are free from fraud.
Note how the court argues here: (1) A person could sign a petition
simply because he "agrees that the referendum should be placed before
the voting public," and not because he "supports the content of the
referendum." (2) "In other words," the identity of the petition
signers "is irrelevant" to the voter who seeks to figure out "who is
essentially lobbying for" the proposal.
But statement 2 is not at all just "other words" for statement 1.
Statement 1 correctly asserts that signing a petition is not
dispositive evidence of the signer's views on the merits. Some people
do sign petitions because they think the public is entitled to vote on
the question, even though they'll vote against the proposal; some
people might expect the proposal to lose, and might sign the petition
precisely because they want a statewide vote in which the proposal
loses; some people might have deeper political reasons for signing,
perhaps because they think the proposal's presence on the ballot will
bring out voters who will vote the right way on some other measures or
in candidate races; some people might just have been buffaloed into
signing something; and so on.
But this hardly means that the identity of the signers is irrelevant
to determining who is lobbying for the proposal. If, for instance, it
turns out that 60% of a petition's signers are registered Democrats
and 10% are registered Republicans, in a state that's generally split
50-50, voters can reasonably conclude that the petition is probably a
project of Democrats, and would thus be more likely serve the
interests of traditionally Democratic interest groups -- relevant
information to many voters, especially if there's a dispute on what
the law's effects likely will be.
Now if the argument were simply that the connection isn't strong
enough to pass muster under strict scrutiny (the test that the court
is applying here), that would be plausible. Likewise, if the argument
were that the interest in getting such information about the
initiative's backers wasn't compelling enough to satisfy strict
scrutiny, that would be plausible, too. (My disagreement with the
court on the bottom line stems from my view that [3]strict scrutiny
shouldn't apply here.) But this leap from (1) the signature being an
imperfect proxy for backing the merits of the petition to (2) its
being irrelevant to deciding who is backing the merits of the petition
is not sound.
References
1. http://seattletimes.nwsource.com/ABPub/2009/09/10/2009842734.pdf
2. http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252677439
3. http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252677439
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