[EL] Secret signatures and secret ballots

Tue Oct 18 13:02:07 PDT 2011

Fredric,

To the extent that the harassment that takes place at signature gathering locations has threatening overtones, it could easily make people reluctant to have their names and addresses disclosed, which could lead to further threats or to actual violence directed toward them. That's the connection between such tactics and disclosure of names and addresses of signers. Such harassment is also independently troubling, as I thought my post indicated.

With regard to California practice, the point here is that there is a movement to make the names and addresses public, not that the names and addresses currently are public in California.

The identity theft scare is given more "scariness" (as we might say with Halloween coming up) if people are told that their names and addresses will be made public. It is an unscrupulous scare tactic, as I said, because, as you correctly note, it is untrue.

Are there sources you could point us to that deal with the past practice of physical obstruction of signature gathering? That would be of great interest to me and to I think others on the list.
Best,
Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: Fredric Woocher [mailto:fwoocher at strumwooch.com]
Sent: Tuesday, October 18, 2011 12:47 PM
To: Scarberry, Mark; law-election at uci.edu
Subject: RE: [EL] Secret signatures and secret ballots

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<mailto: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</mc/compose?to=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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