[EL] Secret signatures and secret ballots

Tue Oct 18 15:10:01 PDT 2011

                It seems to me that the fraud prevention rationale is a reason why ballot secrecy and initiative signature secrecy are similar, rather than different.  After all, in principle opening up ballots to inspection might help prevent fraud, much as opening up petition signatures to inspection might help prevent fraud.  For instance, if all ballots were associated with the voter's name, and were then put on the Web, people who are worried that their ballots were tampered with could check whether the ballot markings were really as they had expected.  Indeed, the secret ballot makes it much easier for government officials to mess around with the ballots, precisely because no-one will be able to call them on this or that ballot being mismarked.  If all one cared about was preventing fraud, with no regard on whether such mechanisms would prevent some people from voting as they prefer, then the secret ballot would be abolished.

                As to the "actual vote" vs. "a request to the government to take some specific type of action" distinction, it's hard for me to see why it should make an election law difference.  A vote for a ballot measure is a request to the government to take some specific type of action - making the measure law - that has legal force if enough people agree.  A signature on a ballot measure petition is a request to the government to take some specific type of action - putting the measure on the ballot - that has legal force (in that it will cause the measure to be put on the ballot) if enough people agree.  What exactly is the big difference here?

                Eugene

From: Vince Leibowitz [mailto:vince.leibowitz at gmail.com]
Sent: Tuesday, October 18, 2011 10:39 AM
To: Volokh, Eugene
Cc: law-election at uci.edu
Subject: Re: [EL] Secret signatures and secret ballots

"...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<mailto: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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