[EL] Secret signatures and secret ballots

Tue Oct 18 22:56:33 PDT 2011

       Eugene's original question, I believe (I've gone through this thread pretty quickly, so excuse me if I get it wrong or have overlooked something) was whether there was a significant difference as a policy matter between the secret ballot and secrecy of initiative signature petitions.

        The answer, in my opinion, is plainly yes, for a reason that has emerged during this discussion. The secret ballot serves two major purposes: privacy of the voter's decision and protection against vote-buying and voter intimidation.

         The first purpose, voter privacy, is conceptually debatable.  Over time, a near consensus in America seems to have developed in favor of voter privacy.  In my opinion, Eugene has done a pretty good job here of fending off arguments that the case for privacy for initiative signers is different.

          However, the important policy of preventing vote-buying and voter intimidation is entirely inapplicable to initiative petitions, so long as the proponent of an initiative circulates the petitions and collects signatures.  By the nature of that system, the identity of the signers is known to the proponent, who would be the most likely to buy signatures or intimidate potential signers into signing.  For other reasons, I would favor switching to a system in which the number of required signatures is greatly reduced and signers are required to go to specified stations (fire stations, libraries, etc.) to sign petitions, which would be in the possession of government workers.  If we made that switch, then the policy of preventing the buying of signatures or intimidating potential signers could plausibly be asserted, at least in theory.  (Perhaps only in theory, because so far as I am aware, under the present system in which the proponent collects signatures, buying of signatures and intimidation have not occurred on a significant scale.  Proponents have been able to manage by paying circulators.)

          It follows that there is a very strong policy reason for adhering to the secret ballot that does not apply to secrecy for initiative signers, at least under our present system of circulation.  Eugene seeks to avoid this conclusion by pointing out that the increasing use of absentee voting vitiates the anti-vote-buying and anti-intimidation purpose.  I agree that the vitiation exists, which is why I favor going back to a requirement of cause for absentee voting.  But in making this point, Eugene is switching the argument.  He does not show that the case for secrecy for petition-signers is distinguishable from the case for the secret ballot, only that we are currently departing from the good policy of requiring ballot secrecy.

           By making this point, I do not mean to be arguing against secrecy for signers, only to be responding to Eugene's question.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Volokh, Eugene [VOLOKH at law.ucla.edu]
Sent: Tuesday, October 18, 2011 4:02 PM
To: law-election at uci.edu
Subject: Re: [EL] Secret signatures and secret ballots

        Here I thought I was being realistic, and now it turns out that I'm engaging in propaganda and unhealthy kinds of statements.  Yet at the risk of further unhealthy statements, let me elaborate a bit further:

        Whenever we are contemplating policy choices, it seems at least legitimate -- and often quite useful -- to have a sense of what the available options are going to be.  If, for instance, one is trying to figure out what to do about drug policy, one could simply urge immediate decriminalization of all drugs, including heroin, crystal meth, and so on -- or one could assume that this is politically off the table, and try to figure out what the options are given the political constraints that we are indeed likely to face.  And that's so even if one is positive that total decriminalization is the right solution (a matter on which I'm uncertain, but which I'll assume for purposes of this hypothetical).  That strikes me as healthy pragmatism, not unhealthy propaganda.

        Likewise, if the question is what the marginal costs are of the secret ballot (which I support, incidentally) compared to the marginal costs of some degree of secrecy in initiative petition signing (which I also support), it seems to me helpful to think about the pluses and minuses of each option while holding the other legal rules invariant, rather than putting on the table a possible (but I think implausible) abolition of absentee voting.  Perhaps taking such an approach, rather than assuming that all the other possible rule changes are also on the table, is actually a pretty healthy way of approaching matters.

        Eugene

> -----Original Message-----
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-
> bounces at department-lists.uci.edu] On Behalf Of Bev Harris
> Sent: Tuesday, October 18, 2011 3:31 PM
> To: law-election at uci.edu
> Subject: Re: [EL] Secret signatures and secret ballots
>
> Below is an example of a propaganda technique called asserting the
> foregone
> conclusion (yep, it's given its own heading in the manuals I've seen, one of
> which was created for the U.S. military):
>
> >                 But given that we do have absentee voting, and are unlikely
> > to stop having it
>
> This is not a healthy kind of statement for a society that values public action,
> but it's a great statement to dissuade a population from trying to do
> anything.
>
> Just one more point; whereas Mr. Volokh indicates that absentee voting can
> produce fraud in the form of a vote-buying scheme, the larger fraud in
> absentee
> voting takes place when someone with inside access inserts votes into the
> pool
> using the names of legitimate but irregular voters, without their knowledge.
>
> Best,
>
> Bev Harris
> Founder - Black Box Voting
> http://www.blackboxvoting.org
>
> * * * * *
>
> Government is the servant of the people, and not the master of them. The
> people, in delegating authority, do not give their public servants the right
> to decide what is good for the people to know and what is not good for
> them to
> know. We insist on remaining informed so that we may retain control over
> the
> instruments of government we have created.
>
> Black Box Voting is a nonpartisan, nonprofit 501c(3) elections watchdog
> group
> funded entirely by citizen donations.
> http://www.blackboxvoting.org/donate.html
> Black Box Voting
> 330 SW 43rd St Suite K
> PMB 547
> Renton WA 98057
>
>
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