Anonymity and Pro-Abortion-Rights Initiatives and Referenda

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Title: Anonymity and Pro-Abortion-Rights Initiatives and Referenda

Originally reported on reason.com by Eugene Volokh

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If the Court indeed holds that the Constitution doesn’t protect abortion rights, the debate will move to state legislation (as well as to state constitutional decisionmaking). And I expect that some of that legislation will be through the initiative and referendum process.

My sense from the surveys is that there is a good deal of support even in many majority-Republican states for protecting abortion rights at least in the first trimester—and that in some of them, the voters are more pro-abortion-rights than the state Legislature. Such mismatches between statewide public sentiment and results in the Legislature often do happen, for a variety of reasons; nor do they necessarily reflect anything nefarious: Different modes of legislation aggregate public preferences in different ways. But in any event, such mismatches are a classic example of where initiatives and referenda can make a difference (as we’ve seen, for instance, with anti-race-preferences initiatives in various states).

To give just one example, consider Utah. The Legislature there recently banned abortions with exceptions for rape, incest, and the woman’s health. But the public appears closely divided on abortion rights generally, with one poll reporting that 47% of Utahns say abortion should be legal in most or all cases, and 51% say it should be illegal—doubtless within the margin of error, and potentially within the margin of political compromise and perhaps political persuasion.

I likewise expect that there is a good deal of support even in many majority-Democrat states for restricting abortions at least starting with the second trimester—and that in some of them, the voters are more pro-restriction than the state Legislature.

Many states, though, make initiative and referendum signatures matters of public record. Doe v. Reed (2010) held that such disclosure rules are facially constitutional, because they can help “preserv[e] the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability.” (Justice Scalia would have reached the same result, but by concluding that a petition signature is a legislative act that had historically been viewed as public, and thus wasn’t subject to the First Amendment.)

But Doe v. Reed also held that proponents of such initiatives and referenda can file as-applied challenges, and get an exemption from the disclosure requirement if they can show “a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.” And that appears to include nonviolent private reprisals, such as firing from a job (presumably including legal firing, in states that don’t ban employment discrimination based on such political activity). To my knowledge, though, courts haven’t resolved exactly what counts as “harassment[] or reprisals,” and how much of that needs to be shown.

Here are my questions: Say that the proponents of an abortion-related ballot measure argue that many of their petition signers will face “reprisals” in the form of

1. religious ostracism, or even excommunication or similar expulsion from their or their families’ religious communities,
2. social ostracism from their secular communities, or
3. economic repercussions short of being fired (e.g., lost business opportunities, boycotts, and the like).

Should that suffice to keep the names of signers confidential?

Note also that similar arguments could apply to financial donations to the campaign, see Brown v. Socialist Workers ’74 Campaign Committee (1982), but I expect that this will be somewhat less significant, because contributions would likely be available (on both sides) from people throughout the country. Petitions, on the other hands, would need to be signed by voters within the state.

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