[EL] Secret signatures and secret ballots

Tue Oct 18 15:32:29 PDT 2011

I am skeptical about the extent of electronic switching of the votes of
individuals.  Have there been many prosecutions?

At any rate, open voting raises in very stark form the racial issue I noted
earlier
On Tue, Oct 18, 2011 at 6:21 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

>                 But given that we do have absentee voting, and are unlikely
> to stop having it – so that this avenue for vote-buying remains in effect,
> for those who want to organize such schemes – it seems to me that the secret
> ballot remains much the same as the secret initiative signature:  (1) It
> does increase the risk of fraud of which the voter is unaware (and also
> makes it harder to undo fraud that is detected after the election, for
> instance when it turns out that some of the voters were actually
> ineligible), but (2) it provides the benefit of a more accurate gauge of
> voter sentiment, since people will vote their true preferences rather than
> with an eye towards what their neighbors might think.****
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *John Tanner
> *Sent:* Tuesday, October 18, 2011 3:15 PM
>
> *To:* Volokh, Eugene
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] Secret signatures and secret ballots****
>
> ** **
>
> I disagree that the secret ballot facilitates fraud.  That may be true of
> fraud of which the voter is unaware, but good old-fashioned fraud generally
> involves vote-buying, and the trick is to make sure votes are cast as
> purchase.  Thus the most favored method is absentee voting, where the voting
> may be less secret than clandestine.  With open voting, you have the
> election at Eatonswill****
>
> On Tue, Oct 18, 2011 at 6:10 PM, Volokh, Eugene <VOLOKH at law.ucla.edu>
> wrote:****
>
>                 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>
> 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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