[EL] Secret signatures and secret ballots

[Volokh, Eugene]

                I agree that there are differences between votes and signatures; but I'm not sure why the differences listed below ultimately justify preserving secrecy for votes, but not secrecy for signatures.  If the goal of the secret ballot is to make sure that people's true sentiments - rather than sentiments as influenced by fear of retaliation - are recorded, then it seems to me secrecy is pretty much as useful as to signatures.

Let's take the mayor example, but focus on a recall.  If my neighbor is mayor, and I'm worried that he might retaliate against me if I vote to recall him, I suspect I'll be similarly worried that he might retaliate against me if I sign a recall petition.  Sure, I suppose I could say, "I don't really want you to lose your job; I just wanted the voters to get to vote on the subject."  But I doubt that this will much affect his reaction, or my fear of his retaliation.

                To be sure, if the question is whether the two can be distinguished under the rational basis test, I agree that some logically plausible distinctions can be drawn.  I just don't see why, as a policy matter, they should indeed be so distinguished.

                Eugene

From: Doug Hess [mailto:douglasrhess at gmail.com]
Sent: Tuesday, October 18, 2011 4:20 PM
To: law-election at department-lists.uci.edu
Cc: Volokh, Eugene
Subject: Secret signatures and secret ballots

 I'll take a shot at this question...sorry if I missed similar responses in the digest.

Votes and signatures function differently in at least two important ways, the first is a matter of the effectiveness of a political act; the second, a matter of rhetoric (in the older sense of the word, as in "giving reasons"):

1) Effectiveness of the Act
1a) The number of signatures needed for a petition to succeed simply needs to surpass some threshold (the required number to pass and the extras needed to ensure sufficiency) that may not be easy to collect, but is at least known (i.e., an extremely fearful supporter could do something else for the campaign instead of signing the petition and know the purpose of signing had been achieved once the threshold was met).
1b) The number of votes, and your vote, has to pass some (generally) unknown number of votes that your opponent is getting. More importantly, perhaps, given that most elections are settled by a large margin, your vote is expressive and all that. Even if you know your candidate will win, I think voters like the idea of being recorded, etc.

2) Rhetoric of Action (i.e., giving reasons for your action)
2a) Signing a petition does help it, but the action could be justified as just "putting it on the ballot"; this argument actually works, in my experience, when asking people to sign a petition for candidates they don't like (don't forget, candidate petitions are public) or for an initiative they don't agree with.
2b) Voting, on the other hand, is a much more definitive act of support.

If both of your neighbors are running for Mayor, you might sign a petition for both even though you don't care for one. You can justify this and even denounce one if you want to. However, if they get to know that you voted against one of them, and this bothers you or is threatening in some way, you might stay out of the election entirely.

As an aside:

Do members of congress have to collect signatures each time they run? Or does that vary by state? Or only if you're a non-incumbent? I ask because I strongly suspect that politicians complaining about "voter registration fraud" likely have handed in petition forms that had far more bad signatures and errors than voter registration applications by citizen drives. I recall, this was awhile back, that the rule of thumb was that candidates and initiatives need to gather something like 20 to 25 percent more signatures on their petitions than needed to ensure that they had a sufficient number.

-Doug

From: "Volokh, Eugene" <VOLOKH at law.ucla.edu<mailto:VOLOKH at law.ucla.edu>>
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Date: Tue, 18 Oct 2011 07:20:27 -0700
Subject: [EL] Secret signatures and secret ballots

                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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