Doe v. Reed
The Supreme Court ruled that Washington could generally release referendum petitions, including the names and addresses of signers, to anyone who asked under the state's public records law, rejecting a broad First Amendment challenge to that disclosure practice.
The Court left open a narrower question still pending in lower courts: whether releasing this particular petition -- tied to a bitterly contested same-sex partnership referendum -- could still violate signers' rights if it exposed them to a real risk of harassment.
“Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”
Explaining why disclosure of referendum petitions serves the state's interest in electoral integrity.
How it got here: A federal district court blocked release of the petition; the Ninth Circuit reversed that injunction; the Supreme Court agreed to review the case.
The Case in Depth
What happened
Washington's legislature had extended benefits to registered domestic partners, including same-sex couples. Opponents organized to collect signatures for a referendum (R-71) asking voters to reject the law. After the petition was submitted, several groups and individuals requested copies of it under Washington's public records law, and two organizations announced plans to post signers' names and addresses online in searchable form. Petition signers and sponsors sued to block release, fearing harassment.
The question before the Court
Could Washington State make public the names and addresses of people who signed a petition to put a same-sex domestic-partnership law to a referendum vote?
The Court's answer
No -- the Court ruled that releasing referendum petitions to the public, including signers' names and addresses, does not generally violate the First Amendment. Although signing a petition is expressive political activity, Washington's public-records disclosure rule is not a ban on speech, and the state's interest in protecting the integrity of its referendum process -- catching fraud and mistaken signatures, and promoting transparency -- was substantial enough to justify the burden disclosure places on signers.
The Court stressed this ruling only resolved the broad, general question. It did not decide whether releasing this specific, unusually controversial petition -- tied to a same-sex partnership referendum -- might still be unconstitutional if signers could show a real risk of harassment. That narrower claim returns to the lower courts for further proceedings.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
People who sign referendum or initiative petitions in states with public-records laws can generally expect their names and addresses to become public. Election officials retain a disclosure tool to help catch fraud and mistaken signatures, while signers of unusually controversial petitions may still be able to seek individualized protection through separate lawsuits.
What changes now
The ruling settles only the broad question of whether disclosing referendum petitions in general is constitutional; it does not decide whether releasing this specific R-71 petition is lawful given the intense controversy surrounding it. That narrower, fact-specific claim -- Count II of the original lawsuit -- goes back to the district court, which must weigh evidence of any real threat of harassment to R-71 signers before deciding whether they are entitled to an exemption from disclosure.
What this does not decide
The Court decided only that disclosing referendum petitions in general does not violate the First Amendment. It explicitly left open whether releasing the names of people who signed this particular, highly contentious petition would violate their rights, sending that narrower claim back to the lower courts for further proceedings.
Concurrences and dissents
Dissent — Justice Thomas
“I would hold that Washington’s decision to subject all referendum petitions to public disclosure is unconstitutional because there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process.”Thomas's central objection that a less restrictive disclosure alternative was always available.
Justice Thomas argued that compelled disclosure of referendum signatures is a severe burden on political association that should trigger strict scrutiny, the toughest constitutional test. Under that standard, he concluded Washington's disclosure rule could never be narrowly tailored, since the state could instead verify signatures through an internal electronic database without ever releasing names and addresses to the public.
Concurrence — Justice Breyer
Justice Breyer described the Court's approach as a balancing test weighing the burden on speech against the law's benefits, and said he agreed with both the majority and Justice Stevens that Washington's disclosure rule passed that balance.
Concurrence — Justice Sotomayor
Justice Sotomayor emphasized that referenda and initiatives are optional, state-created lawmaking mechanisms subject to considerable regulatory leeway, and that the burden of public disclosure on speech is minimal because petition-signing is an inherently public act. She said any future as-applied challenge would face a heavy burden absent proof of serious, widespread harassment the state cannot control.
Concurrence in part — Justice Stevens
Justice Stevens argued this was an easy case because the disclosure rule is a neutral policy about information the state already possesses, not a restriction on speech, and the burden it imposes is minimal. He agreed the door should remain open to as-applied claims, but said such claims would require strong evidence of a significant, unmitigated threat of harassment.
Concurrence — Justice Scalia
Justice Scalia doubted petition signing counts as First Amendment speech at all, and argued that a long historical tradition of public legislating and public voting shows the Constitution does not protect a right to anonymity in performing an act with legal, governmental effect.
Concurrence — Justice Alito
Justice Alito agreed that broad disclosure of referendum petitions is generally constitutional, but wrote to stress that as-applied exemptions must be genuinely available quickly and without a heavy evidentiary burden, and argued the R-71 plaintiffs have a strong case for such an exemption given evidence of harassment tied to a similar California ballot measure.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether signing a referendum petition is protected expression at all, holding that it is: a signature communicates a political view about the underlying law even though it also has the legal effect of helping place a measure on the ballot.
- Because the challenged rule is a disclosure requirement rather than a ban on speech, and because states are given substantial leeway to regulate the mechanics of their own voting systems, the Court applied 'exacting scrutiny' -- a test asking whether there is a substantial relationship between the disclosure rule and a sufficiently important government interest, a less demanding standard than the strictest form of constitutional review.
- The Court found that Washington's interest in preserving the integrity of the referendum process -- catching fraud, detecting invalid signatures the state's own verification process might miss, and promoting transparency -- was substantial enough to satisfy exacting scrutiny.
- Turning to the burden side of the balance, the Court stressed that the plaintiffs' challenge covered referendum petitions in general, not just the one at issue, so they needed evidence that disclosure of typical, less controversial petitions would impose serious burdens like those they feared from this one.
- Finding that plaintiffs offered little more than fears specific to this unusually contentious petition, and noting that other Washington petitions had been released without apparent incident, the Court concluded that public disclosure of referendum petitions in general survives exacting scrutiny.
Doctrinal impact
Cases affected by this decision
Reaffirms Buckley v. Valeo (424 U.S. 1)
The Court relied on Buckley's 'exacting scrutiny' standard as the correct test for disclosure requirements.