[EL] Secret signatures and secret ballots

Wed Oct 19 18:29:31 PDT 2011

Actually, in Washington, there are checks and  balances without public 
release of the petition signatures.  When the Sec  of State is reviewing the 
petition signatures, parties get to have watchers to  review the process. If 
these people think there are errors, then they can  petition for judicial 
review and the judge then does the verification of the  signatures.  The people 
who wanted the list to be made public did not take  advantage of this 
procedure. so they had no serious doubt about the fact that  the Sec of State had 
accurately determined that there were sufficient valid  signatures to put 
this measure on the ballot.  Jim Bopp

In a message dated 10/19/2011 1:18:55 P.M. Eastern Daylight Time,  
lehto.paul at gmail.com writes:

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_ (mailto: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_ (tel:310-825-5148) 

________________________________________
From:  _law-election-bounces at department-lists.uci.edu_ 
(mailto:law-election-bounces at department-lists.uci.edu)   
[_law-election-bounces at department-lists.uci.edu_ (mailto:law-election-bounces at department-lists.uci.edu) ]  On 
Behalf Of Volokh, Eugene [_VOLOKH at law.ucla.edu_ (mailto:VOLOKH at law.ucla.edu) ]

--  
Paul R Lehto, J.D.
P.O. Box 1 
Ishpeming, MI  49849 
_lehto.paul at gmail.com_ (mailto:lehto.paul at gmail.com) 
906-204-4026  (cell)

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