[EL] Secret signatures and secret ballots
JBoppjr at aol.com
JBoppjr at aol.com
Tue Oct 18 18:48:20 PDT 2011
This raises another error of the district court. The harassment exemption
is not limited to "minority citizens" or "fringe organizations." The
original discussion in Buckley concerned a claim by "minor parties," that is
minor political parties who were Plaintiffs, who had claimed an exemption
from political party reporting the Buckley court upheld, based on a claim of
potential harassment. The Buckley Court said that that claim is available
to "minor parties." This was a reference to the minor political parties in
the Buckley suit. However, some people and some courts have misunderstood
this term to refer to "minority parties," not the minor political parties
who made the claim in Buckley. This misinterpretation arises because the
sentence in Buckley is quoted without understanding its context.
This is logical because Buckley was protecting free speech from chill by
harassment and this can occur whenever one group, no matter what its size,
decides to intimidate another. The KKK did that to blacks. Jim Bopp
In a message dated 10/18/2011 4:20:55 P.M. Eastern Daylight Time,
john.k.tanner at gmail.com writes:
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_ (mailto: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_ (tel:(310)506-4667)
From: Fredric Woocher [mailto:_fwoocher at strumwooch.com_
(mailto:fwoocher at strumwooch.com) ]
Sent: Tuesday, October 18, 2011 12:47 PM
To: Scarberry, Mark; _law-election at uci.edu_ (mailto: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_ (tel:(310)%20576-1233)
____________________________________
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[mailto:_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_ (mailto: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_ (tel:(310)506-4667)
From: _law-election-bounces at department-lists.uci.edu_
(mailto:law-election-bounces at department-lists.uci.edu)
[mailto:_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_ (mailto: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_ (tel:415-922-9779)
PO Box 470296, San Francisco Ca 94147
--- On Tue, 10/18/11, Vince Leibowitz <_vince.leibowitz at gmail.com_
(mailto:vince.leibowitz at gmail.com) > wrote:
From: Vince Leibowitz <_vince.leibowitz at gmail.com_
(mailto:vince.leibowitz at gmail.com) >
Subject: Re: [EL] Secret signatures and secret ballots
To: "Volokh, Eugene" <_VOLOKH at law.ucla.edu_ (mailto:VOLOKH at law.ucla.edu) >
Cc: "_law-election at uci.edu_ (mailto:law-election at uci.edu) "
<_law-election at UCI.EDU_ (mailto: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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