[EL] Secret signatures and secret ballots

[Volokh, Eugene]

I'm making a policy argument; as a First Amendment matter, I'm with Justice Scalia in concluding that neither the secret ballot nor secrecy of initiative signatures is constitutionally mandated.

Disclosure of contributions, it seems to me, raise similar concerns about chilling effects.  But the government interests involved in contribution cases are at least potentially different, I think, than in cases where the disclosure is simply of how someone voted or whether someone signed a petition.  In my post below, I'm focusing on what strikes me as the similarity between the ballot and the petition signature; the similarity is not necessarily as close when it comes to contributions.

Eugene

From: Brian Landsberg [mailto:blandsberg at PACIFIC.EDU]
Sent: Tuesday, October 18, 2011 8:55 AM
To: Volokh, Eugene; law-election at uci.edu
Subject: RE: Secret signatures and secret ballots

Eugene,
Are you making a policy argument or a first amendment argument?  And would your logic also suggest secrecy as to contributions to initiative campaigns?
Brian

Brian K. Landsberg
Distinguished Professor and Scholar
Pacific McGeorge School of Law
3200 Fifth Avenue, Sacramento CA 95817
916 739-7103

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, October 18, 2011 7:20 AM
To: law-election at uci.edu
Subject: [EL] Secret signatures and secret ballots

                I thought I'd pose two questions to the list ; the questions are related, but I hope people might consider them.

                1.  Say that we're deciding whether to adopt the secret ballot, and there are two options on the table: (a) the secret ballot, and (b) a regime in which people's votes are recorded, but employers and other institutions are barred from discriminating based on a person's vote.  Which do we think might be superior, considering both
(i) the possibility that the antidiscrimination regime won't be easily enforceable and thus might not give much assurance to voters that they need not fear discrimination, and
(ii) the interest of some employers, contracting parties, and others in, for instance, not employing someone who is known to them and to their customers as a supporter of some hypothetical KKK Party, or of a militantly anti-American party (whether Communist or otherwise), or a ballot measure whose content undermines confidence in the employee's commitment to his job?

2.  Assuming that your answer to the first question is (a), because the secret ballot gives voters more confidence that their vote won't be held against them, while at the same time diminishing the burden on employers, why exactly should the answer be different as a policy matter for signing an initiative petition as opposed to voting on the petition?  Both involve voters exercising their lawmaking power, and not just speaking.  Both involve each voter having only a very minor effect on the election (unlike legislators, whose impact on a result is likely to be much greater).  Both involve voters being potentially deterred from expressing their true views by fear of retaliation.  To the extent one thinks that some retaliation, such as remonstrances or even boycotts, is valuable, both involve that equally as well.  Why should we treat one form of voter participation in the lawmaking process differently from the other?

                Eugene
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