[EL] Secret signatures and secret ballots

[Vince Leibowitz]

"...why exactly should the answer be different *as a policy matter* for
signing an initiative petition as opposed to voting on the petition?"

Why? First and foremost, because good public policy dictates that
petitions--for ballot access or initiative--should be able to be verified
independently to ensure that legitimate support exists for the candidate,
party, or ballot measure. Without independently verifiable petitions, we are
all at the mercy of the certifying authority to determine whether or not the
petitions are legitimate. If I'm not mistaken, "sampling methods" are
sometimes used to do this. Because of this, it is very important that both
the supporters who signed the petition (independent of the
organization/candidate collecting) as well as those who oppose have the
right to determine whether or not the certifying authority's count or
"sample," or whatever is correct.

>From my perspective, the two are completely different things. One is an
actual vote you are casting to elect a person or persons to public
office--something that, going back to ancient times, has been viewed as
private for various reasons, many of which would still hold true today. The
second is essentially a request to the government to take some specific type
of action (at least, in the domain of election law), or actually
articulating a grievance (such as the anti-slavery petitions to Congress in
the 1800s.

Perhaps this requires looking at the issue from a historical perspective
first to determine why various policy positions have been formulated over
time.

I believe there is a certain school of thought that traces the "right to
petition the government" to the Magna Carta, specifically the section about
four barons "coming to us, or to our justiciar" laying out the
transgression, and petitioning for it to be corrected. As no privacy
concerning the petitioners was included or implied there, one would assume,
as other key documents and listings of rights were created, and as
philosophers pontificated on various and sundry rights and duties of
government and citizenry, they may have taken from that there was no
inherent right to privacy tied to the right to petition.

The secret ballot, on the other hand, dates back to ancient Greece and
ancient Rome's Lex Cassia Tabellaria (or something similar). The secret
ballot has been around far longer than the perceived right to petition,
which in this country I believe was derived from British precedent
(presumably, dating to the Magna Carta and later Blackstone's *Commentaries*).


Not being a historian by trade, I don't portend that my facts are 100
percent correct, but I believe I'm close, thanks to a little Google-aided
recollection of what I recollect from undergraduate history and political
science years ago.

On Tue, Oct 18, 2011 at 9:20 AM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

>                 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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>



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