On June 24, the U.S. Supreme Court issued an 8–1 decision in a First Amendment case that could impact the outcome of a case now before the West Virginia Supreme Court of Appeals. The high court ruled that disclosure of information on petitions for ballot referenda does not violate the First Amendment.

The Doe v. Reed case centers on the release of petition names gathered for the referendum on same-sex marriage in the state of Washington. According to Washington state law, petition names can be disclosed to the public as part of the open government process. Although there are differences in state law, the case bears similarities to Shepherdstown Observer v. Jennifer Maghan, a case brought by this publication that also focuses on the release of petitioners’ names.

The West Virginia case centers on The Observer’s Freedom of Information Act request for the list of petition names collected in support of a vote on the Jefferson County Zoning Referendum, which took place November 7, 2009. Jefferson County Clerk Jennifer Maghan refused to release the names, citing privacy concerns. Her decision was upheld by Circuit Court Judge David Sanders, who said that any document prepared by a private citizen group and given to a government body was not subject to FOIA.

In his supreme court opinion, Chief Justice John Roberts wrote: “Public disclosure thus helps ensure that the only signatures counted are those that should be, and that the only referenda placed on the ballot are those that garner enough valid signatures.” Roberts added, “Public disclosure also promotes transparency and accountability in the electoral process to an extent other measures cannot.”

Justice Antonin Scalia argued that concerns that petitioners would be harassed if their names are released do not outweigh the democratic benefit of the public scrutiny of these same names. “There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

Said Charles Town attorney Stephen Skinner who, along with West Virginia University Law Professor Patrick McGinley, brought the suit: “The U.S. Supreme Court decision completely refutes the Jefferson County Clerk’s attempt to sandbag West Virginia’s Freedom of Information Act.”

The West Virginia Supreme Court has set oral arguments for Shepherdstown Observer v. Jennifer Maghan for Sepember 8. A final decision may be given before the end of the year.

For background information on the case see wvObserver.com.

Jennifer Maghan, County Clerk, and Ronda Lehman, the petition organizer, declined to comment on this story.