A Good Day for Free Speech and Free Elections

Legal constitutionalists and political conservatives have had reason to be disappointed at times with the Roberts Court, but today is not one of those days. The Court concluded its 2020-21 term with a pair of 6-3 rulings written by George W. Bush’s appointees (Chief Justice John Roberts and Justice Samuel Alito) and joined by all six Republican appointees to the Court. Both reached the right conclusions. Both will advance the progress of the law toward a vibrant space for democracy, by protecting free speech and free and fair elections.

Americans for Prosperity Foundation v. Bonta arose from the California attorney general’s office, mainly under Kamala Harris and Xavier Becerra, trampling the First Amendment rights of nonprofit advocacy groups to the privacy of their donors. It was not a coincidence that California launched that initiative at the height of the Tea Party movement. Its draconian scope applied not only to California charities but to any nonprofit that solicited donations in the state — even Chinese dissident groups. In an age of cancel culture and ever-increasing digital surveillance, the Court found, the risks of harassment and reprisals “are heightened in the 21st century and seem to grow with each passing year, as anyone with access to a computer can compile a wealth of information about anyone else, including such sensitive details as a person’s home address or the school attended by his children.”

The cause of donor rights brought together possibly the broadest coalition of interest groups on the same side of an issue in the Court’s history. Even the Biden administration’s brief admitted that Harris and Becerra had disregarded the importance of protecting the privacy of donors by maintaining donor lists on a system the trial court found to be “an open door for hackers.” Given the record of Harris and Becerra, Roberts wrote, their office’s “assurances of confidentiality are not worth much.” The Court also found “a dramatic mismatch” between the California AG’s claimed interest in fighting charitable fraud and its methods, with “not a single, concrete instance” in which collecting this information advanced its law-enforcement purpose. AFPF v. Bonta may be a loss for the likes of Kamala Harris and Xavier Becerra, but it is a victory for the free-speech and association rights of people and groups spanning the entirety of the political spectrum. It is also a shot across the bow against the Democrats’ “For the People Act,” which similarly invades the privacy of donors.

Brnovich v. Democratic National Committee upheld two Arizona laws that are common across many states: a ban on counting provisional ballots if they are cast in person in the wrong precinct, and a ban on “ballot harvesting,” preventing activist groups from collecting and handling another person’s completed mail-in ballot. Both types of rules are regularly decried as “voter suppression” by hysterical Democrats. The Court properly found that Arizona had a legitimate interest both in assigning voters to precincts and in protecting the sanctity of the secret ballot from the threat of voter intimidation or fraud presented by third parties handling ballots.