[EL] Secret signatures and secret ballots

Tue Oct 18 12:46:51 PDT 2011

Mark:

The examples you cite are really a very different issue than the
disclosure of the names of those who have signed petitions.  They are
both tried-and-true (well, at least the second) methods of attempting to
dissuade people from signing petitions in the first place and thereby
attempting to prevent the qualification of initiatives and referenda.
These do not represent instances of individual harassment directed at
those who wish to sign a particular measure or support its cause, and
they will continue to exist separate and apart from whether the names of
petition signers are made publicly available.

The physical obstruction game is one that has been ongoing for years,
played by opponents without regard to ideology, and is directed at
harassing the potential signers only insofar as it succeeds in
preventing the qualification of a measure simply by creating
inconvenience and controversy that would hinder the gathering of
signatures from passers-by in shopping centers and other public
locations.  It has long pre-dated public employee groups, and in fact
was most often used by development interests attempting to oppose
citizen-supported initiatives and referenda that would have blocked
development projects or residential growth.  It had and has nothing to
do with the disclosure of signers' names and addresses, for as Richard
Winger pointed out, those names and addresses have been strictly
confidential in California for years.

The identity-theft ploy is just another, wholly factually-unsupported,
way of trying to persuade people not to sign petitions.  First, the
names and addresses cannot be disclosed under California law, and it is
a crime to use them for any purpose other than qualifying the measure.
More to the point, there is no information provided that could be used
to "steal" one's identity, and that is not already readily available
from a phone book, in gazillions of places on the internet, or in an
index of registered voters that can be obtained from the Registrar's
office.

Fredric D. Woocher
Strumwasser & Woocher LLP
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA 90024
fwoocher at strumwooch.com
(310) 576-1233

________________________________

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Scarberry, Mark
Sent: Tuesday, October 18, 2011 12:08 PM
To: law-election at uci.edu
Subject: Re: [EL] Secret signatures and secret ballots

The problem goes beyond harassment, at least right now, and at least in
California. As several of us have pointed out before on the list, groups
that oppose initiatives have been running ads warning that petition
signers may have their identities stolen. Disclosure of names and
addresses of petition signers may not in fact facilitate identity theft,
but it would allow unscrupulous opponents to scare people.

On the harassment front, there have been instances of physical
obstruction of petition signing tables here in California, of conduct
that could be understood as threatening, and of verbal abuse directed
toward those who are signing petitions or gathering signatures, all
apparently by organized groups. (Public employee union groups, I think,
but I'm not sure. Greece, anyone?) That kind of harassing conduct also
may make potential signers reluctant to sign if their names and
addresses will be disclosed.  

Mark S. Scarberry

Pepperdine Univ. School of Law

Malibu, CA 90263

(310)506-4667

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Richard Winger
Sent: Tuesday, October 18, 2011 11:35 AM
To: EugeneVolokh; Vince Leibowitz
Cc: law-election at uci.edu
Subject: Re: [EL] Secret signatures and secret ballots

California validates more signatures than any other state in the typical
election cycle, and California does very well at validating signatures.
Yet in California, the names and addresses of people who sign petitions
are private.

If the proponent or an opponent of a ballot measure in California feels
that the measure has been incorrectly invalidated, he or she is free to
examine the work of election officials and to see which signatures have
been validated and which have been invalidated.  It doesn't follow
logically that just because that is permitted, therefore the general
public can see the names and addresses of all the signers.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147

--- On Tue, 10/18/11, Vince Leibowitz <vince.leibowitz at gmail.com> wrote:

From: Vince Leibowitz <vince.leibowitz at gmail.com>
Subject: Re: [EL] Secret signatures and secret ballots
To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Cc: "law-election at uci.edu" <law-election at UCI.EDU>
Date: Tuesday, October 18, 2011, 10:38 AM

"...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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