Last year, female Facebook users around the world updated their status messages with their bra color. Version 2.0 of this breast cancer awareness marketing strategy ran this year. Perhaps some things should be kept private. But what about our politics? As vast amounts of information goes digital – from individual campaign contributions to the personal communications of our officials – traditional notions of privacy are giving way to an era of sunshine in all aspects of our lives.
Enter (from stage right) Tim Eyman, a veteran ballot initiative activist in the state of Washington. If state-wide ballot initiatives create a de facto citizen legislature, then Eyman is the conservative Washington citizen’s whip. To get an idea on the ballot, initiative supporters must sign petitions, and give such information as their home addresses to verify they’re eligible to sign.
One of the latest election law debates in Washington is if those signatures and information should be public or not. The U.S. Supreme Court ruled this summer in Doe v. Reed that publishing that information does not unconstitutionally chill a signer’s free speech. The Court considered the petitioner’s claim as a facial challenge to the Washington Public Records Act (PRA), which authorizes the release of such information by the Secretary of State, but did leave the door open for individual claims of harassment.
Without considering the privacy concerns of their legislators, let alone their citizen legislators who push for ballot initiatives, the PRA grandly claims that:
“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created.”
Facebook users are now searching for the “like” button.
The problem the petitioners raise is not that the public servants will keep information from them, but rather their own information in their fellow citizen’s hands could lead to harassment. I’ve previously addressed a similar privacy issue in Virginia involving your neighbor knowing if you voted or not. Scalia’s concurrence Doe v. Reed compares the act of signing a petition, which is semi-public because subsequent signers can see it, to a vote cast by a legislator. Legislative votes are public. The concept of the initiative is that citizens retain direct legislative authority over their elected officials. Therefore, a citizen acting as a legislator has no expectation of privacy.
If your signature on a petition isn’t considered private, then naturally the petitioners raise the comparison to the secret ballot. Scalia has a response to that, too. At the time of the adoption of the First Amendment, no state had a secret ballot. Such an invention was an import from Australia in the late 19th century. Scalia rejects the premise adopted by the majority that the action should be considered a First Amendment issue. After all, Scalia notes, there is no history suggesting that legislating is a private act.
In response, Tim Eyman contests that “if you’re a ‘citizen legislator’ when you sign a petition, then you’re certainly a ‘citizen legislator’ when you vote on the measure.” (This is quoted from the Secretary of State’s blog “From Our Corner” and has a great back and forth with Eyman and open government advocates.)
Facebook founder, Mark Zuckerberg, recently noted that privacy is no longer a “social norm.” Based on Doe v. Reed, it looks like he’s right.
Since StateofElections.com doesn’t have a “like” button, please write a comment below to let us know what you think. What political acts should be private? Does Scalia or Eyman have the better argument?
Brian Cannon is a third-year student at William & Mary Law School.