[EL] Secret signatures and secret ballots

[Paul Lehto]

In legal parlance, with petition signing, actions at law are adequate
remedies (about as adequate as legal remedies are in many other areas of law
even if not always totally satisfactory to all), while there is no adequate
action at law if one is intimidated at a polling place into changing one's
vote.  Once the ballot is cast, there's no getting it back and changing it,
for all practical purposes.

Without disclosure of the names and addresses of petition signers, a given
Secretary of State's "authentication" that the correct number of registered
voters have indeed signed a valid petition is a bald conclusory assertion,
lacking any check and balance.  Signatures and addresses occasionally are
scrutinized far more closely or even unfairly when the ballot measure is not
to the liking of the person holding the office of Secretary of State, or its
equivalent for signature verification purposes.

Without meaningful checks and balances whereby opposing parties or average
citizens can check signatures and addresses against lists of registered
voters, the entire petition process is rendered a sham to some very
significant degree.

If we are to tolerate secret signatures on petitions, then in my view the
radical lack of any meaningful checks and balances strongly suggests
dispensing with signature petition requirements in general, because they
become a pure act of political theater that may or may not express the
requisite level of support among the voting populace for the candidacy or
measure in question.

But the fundamental difference between petitions and casting ballots is the
existence of remedies for petitions and the essentially non-existent
remedies once ballots are cast into the ballot box.  Election contests,
especially for those like myself who have done them, are notoriously
difficult and unreliable ways to "correct" an erroneous election result
compared to other legal remedies in other areas of law.

Thus, precious little evidence -- even voter affidavits -- can be counted on
to impeach an election result (though some election contests have allowed
such forms of proof).  Every time we act politically - even by making a
speech at a legal convention -- we expose ourselves to small infinitesimal
or greater risk of not just intimidation, but even attempted assassination,
as one Arizona Congresswoman and others can attest.  Shall we then have
secret political office holders, secret judges, secret juries and secret
everything as a general rule?

Paul Lehto, Juris Doctor

PS  In an election contest filed in the House Admin. Cmte in 2006 concerning
Clint Curtis' candidacy for a House seat in Florida, they would not even
consider (nor allow any discovery) the affidavits submitted that allegedly
showed greater numbers of affidavits from some precincts attesting to votes
for Clint Curtis than reported in the official canvass for the same
precincts.  While some courts have considered such affidavits, this bolsters
the assertion that post-casting challenges of ballots are fraught with much
more than the usual difficulties in terms of adequacy of legal remedies.

On Wed, Oct 19, 2011 at 1:56 AM, Lowenstein, Daniel <lowenstein at law.ucla.edu
> wrote:

>       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 sig
>  natures 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]
>
-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4026 (cell)
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