[EL] Secret signatures and secret ballots

Wed Oct 19 18:07:28 PDT 2011

Ballots and signatures are radically different.  With ballots, one has the
perfect right to screw up, overvote, undervote or deface one's own ballot
either intentionally or negligently, without affecting anyone except one's
own ballot.

But with signatures on petitions, there are obvious public ramifications
including but not limited to ballot access, frauds on the public and so
forth.

The word "secret" as in "secret ballot" is being abused semantically here.
It is more like a private ballot, or a publicly accessible ballot
untraceable to the voter who cast it.  It is not secret.  In numerous
jurisdictions, one can inspect these "secret" ballots upon appropriate
request.  They are clearly not secret in the usual sense of that term.  But
what advocates of signature secrecy seek is much more like classical
secrecy, and thus unlike the procedure in balloting whereby it is not
possible to trace a given ballot back to the person who cast it.

Paul Lehto, Juris Doctor

On Wed, Oct 19, 2011 at 7:29 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

>                 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>
> To: "law-election at uci.edu" <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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-- 
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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