[EL] Secret signatures and secret ballots
John Tanner
john.k.tanner at gmail.com
Tue Oct 18 13:19:19 PDT 2011
Let me add a layer to the discussion, looking at this through a different
prism.
Which of these practices would be acceptable if used against minority
citizens (1) at a polling place, either inside or outside the controlled
zone (2) based on theri campaign contributions to either a candidate or a
cause and (3) while gathering or seeking to sign petitions of any sort.?
And if the answer differs according to activity/location, why does it
matter?
I tend to favor public disclosure, at least of large contributions, but some
of this stuff is giving me the creeps.
On Tue, Oct 18, 2011 at 4:02 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:
> 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****
>
> (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<http://mc/compose?to=VOLOKH@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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