Thursday's decision by the U.S. Supreme Court regarding the secrecy of signatures on ballot petitions has been widely reported as a triumph for Washington Attorney General Rob McKenna, who argued the state's case for making the signatures public and got an 8-1 decision in his favor, and for open government. In fact, the court mostly punted on the issue.
There were two issues before the court. One was whether there is a general First Amendment right to anonymity in signing such ballot petitions. On this one, the court ruled, with only Justice Clarence Thomas dissenting, that there is no such right. But then there is the second issue, the much harder question: Should ballot measures concerning particularly controversial and heated topics (such as gay rights, the matter that brought the lawsuit) afford protection to signers? On this issue, the justices sent the matter back to the lower court.
But of course that's the real issue in Doe v. Reed, and here the high court is very divided. Justice Samuel Alito Jr., for instance, was quoted in New York Times story as saying the challengers should only have to prove a reasonable probability of harassment in such hot-topic cases. Liberal justices such as John Paul Stevens argued for a stricter test: "a significant threat of harassment...that cannot be mitigated by law enforcement measures." Justice Antonin Scalia took the most extreme position, doubting there should be any privacy protections.
So the real issue is far from settled. McKenna's perfect record (3-0) in arguing Supreme Court cases now has an asterisk. Indeed, there's some reason to wonder whether McKenna and his legal team teed the ball up for an easy victory. The Times' story said the Chief Justice John Roberts "said the case had arrived at the court in a posture that presented only the easier of two questions."
