[EL] Secret signatures and secret ballots

[Doug Hess]

Good points, although the petition will be voted on secretly (or
anonymously may be a better term as others point out, but I think the word
secret is acceptable in these situations) just as voting for a candidate is
secret. Moreover, at the stage of voting you need all the votes you can
get. The signature on a petition, as I mentioned before, is of less urgency
as you only need to surpass a threshold. I.e., feeling you cannot sign
publicly something you would like to sign is somewhat less of a loss than
not being able to vote when your vote is public, etc. How much less? I'm not
sure, but if the threshold to achieve ballot status is low, you can
certainly do many other things to help win ballot status for a petition or
for a candidate. If the threshold is very high or extremely hard, than the
loss is greater.

I guess the issue is: what public purpose is served by requiring people to
"stand up" publicly via signature on some matters? I'm not entirely sure,
but we do see people behave differently in public than when anonymous. While
we value anonymous acts and speech, I think some political processes should
be public. I'm not certain that petitions, especially ones that take
people's right away or vote to impeach/remove, are not one of those times
when being a part of the polis means standing up as a person, and not as
some distant level-puller. I guess one could make the analogy to citizens as
legislators in some way: at least when signing, they need to be raising
their hand as if in a town hall or on a committee.

-Doug

From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: "law-election at department-lists.uci.edu" <
law-election at department-lists.uci.edu>
Date: Wed, 19 Oct 2011 16:29:36 -0700
Subject: Re: [EL] Secret signatures and secret ballots

                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
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