Democracy is best served by keeping secret the sponsors of laws, in order to protect their privacy and not confuse the issue at hand in the minds of voters.

That was the judgment (pdf) Monday of a divided Ninth U.S. Circuit Court of Appeals in tossing out California’s law governing ballot initiatives. Judge Diarmuid O'Scannlain, a Reagan appointee, wrote for the 2-1 majority that forcing sponsors to identify themselves on petitions circulated to get an issue on the ballot impaired their First Amendment free speech rights.

California argued that identifying the sponsor of legislation is important to protect the integrity of elections and promote an informed electorate. Judge O’Scannlain thought that was nonsense. If voters really cared about who was sponsoring legislation “they need only make a trip” to the city clerk’s office and look it up, he wrote. Considering this is an electorate that finds voting by mail in one’s own home an onerous task, that might be a trip too far.

The greater danger, he said, was that people might have second thoughts about promoting a ballot initiative, an expression of First Amendment speech, if others knew who they were.

There was no mention of whether preserving the anonymity of legislative sponsors should be extended to lawmakers in Sacramento, who also might feel more willing to express their First Amendment rights if they could write laws unattached to their names.

The case arose when the Chula Vista City Council, in the San Diego area, rejected a petition in 2010 by the Chula Vista Citizens for Jobs and Fair Competition, the Associated Builders and Contractors of San Diego and two individuals that would have banned the city from requiring union-only contracts in certain circumstances.

U.S. District Judge Roger Benitez ruled that only people, not organizations, can sponsor initiatives and those people had to identify themselves. The appellate court panel upheld the first part of the ruling, unanimously overturned the second part and returned it to the District Court judge for repair.   

O’Scannlain was joined in his opinion by Judge Carlos T. Bea, a 2003 appointee of President George W. Bush. Judge Susan P. Graber, a 1998 appointee of President Clinton, dissented in part. Judge Graber wrote:

“We do not permit federal candidates for public office to remain anonymous at the point of contact with voters, nor do we force voters to support federal candidates without knowing their candidates’ identities. So too here, we should uphold the decision by the citizens of Chula Vista to prohibit anonymous candidates for an official legislative.”  

The case may be appealed to the full appellate court.

–Ken Broder

To Learn More:

Court Strikes Down California Initiative Law (by Paul Elias, Associated Press)

Calif. Ballot Measures Addressed by 9th Circuit (by Tim Hull, Courthouse News Service)

Appeals Court Rules California Initiative Sponsors Can Stay Anonymous (by Maura Dolan, Los Angeles Times)

Chula Vista Citizens for Jobs and Fair Competition et al v. State of California (Ninth U.S. Circuit Court of Appeals) (pdf)