[EL] Secret signatures and secret ballots

Thu Oct 20 19:39:54 PDT 2011

       I don't think there is much disagreement between Eugene and myself on this point.  I don't know how to determine whether the protection of the voter's privacy or the avoidance of bribery and intimidation is the more important reason for the secret ballot, nor do I see why it matters.  Each is an important reason (though the desirability of the former is debatable).  It is probably true that when most people, including election law scholars, think of the secret ballot, they think of privacy as the purpose.  But the reason for that is the success of the secret ballot in solving the problem of bribing voters.

         In the 19th Century, bribery of voters was by far the most important problem of corruption in elections in England and the United States.  It even made its way into popular culture, as can be seen in works by great English novelists such as Dickens (Bleak House), George Eliot (Felix Holt) and Trollope (Doctor Thorne, I think, but it might be Framley Parsonage).  By almost eliminating that problem (not entirely, see for example the first volume of Robert Caro's biography of Lyndon Johnson), the secret ballot is, together with the Voting Rights Act of 1965, the most successful electoral reform in the history of Anglo-American democracy.  We ought not to be jeopardizing that gain, which is why we ought to object to vote-by-mail and no-fault absentee voting.

         On the merits of the question of disclosure of petition signatures, I believe the most fundamental question is not how that question should be answered (a close call at present, in my opinion).  Rather, this issue illustrates the pernicious nature of the harassment that has occurred in recent years, directed against political opponents, especially by supporters of same-sex marriage against opponents.  Aside from the fact that such harassment is morally repugnant in its own right, it also is subversive of our political system.  If such harassment becomes even somewhat common, then the case for disclosure in many settings, including this one, will become more and more tenuous.

             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]
Sent: Wednesday, October 19, 2011 3:16 PM
To: law-election at uci.edu
Subject: Re: [EL] Secret signatures and secret ballots

        I appreciate Dan's point, and if indeed the main reason for the secret ballot is preventing voters from being bribed to vote in favor of an initiative, then I agree that there's a difference between secrecy of the ballot and secrecy of initiative/referendum/recall signatures.

        But it seems to me that at least a very large part -- perhaps the largest part -- of the modern support for the secret ballot is that it lets people vote their conscience without fear of retaliation (not just from signature gatherers but also from others, including initiative opponents).  This is both seen as fairer to voters, and more likely to reflect actual public sentiment, unaffected by the fear of retaliation.  In this respect, the worry isn't just that people will be intimidated into signing a petition (I agree that this risk remains present regardless of whether either ballots or initiative signatures are kept secret).  The worry is that people will be intimidated into not signing a petition, and not voting for the initiative.

        And this concern, it seems to me, counsels equally for secrecy of signatures as it does for secrecy of ballots.  Again, perhaps the recall example might be especially helpful:  We have a secret ballot as to candidates partly because we don't want incumbents to intimidate people into voting for them.  (We also don't want challengers to do the same.)  Likewise, we have a secret ballot on the recall for precisely this reason.  Wouldn't having secrecy of signatures as to the recall petitions likewise serve the same goal, to pretty much the same extent?  True, such secrecy wouldn't prevent intimidation of voters into *signing* the petition; but it would minimize the intimidation of voters into *not signing* the petition.  And if that's so as to recalls, it seems to me it's comparably so as to initiatives and referenda.

        Eugene

> -----Original Message-----
> From: Lowenstein, Daniel
> Sent: Tuesday, October 18, 2011 10:57 PM
> To: Volokh, Eugene; law-election at uci.edu
> Subject: RE: [EL] Secret signatures and secret ballots
>
>        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
> signatures 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]
> Sent: Tuesday, October 18, 2011 4:02 PM
> To: law-election at uci.edu
> Subject: Re: [EL] Secret signatures and secret ballots
>
>         Here I thought I was being realistic, and now it turns out that I'm
> engaging in propaganda and unhealthy kinds of statements.  Yet at the risk of
> further unhealthy statements, let me elaborate a bit further:
>
>         Whenever we are contemplating policy choices, it seems at least
> legitimate -- and often quite useful -- to have a sense of what the available
> options are going to be.  If, for instance, one is trying to figure out what to
> do about drug policy, one could simply urge immediate decriminalization of
> all drugs, including heroin, crystal meth, and so on -- or one could assume
> that this is politically off the table, and try to figure out what the options are
> given the political constraints that we are indeed likely to face.  And that's so
> even if one is positive that total decriminalization is the right solution (a
> matter on which I'm uncertain, but which I'll assume for purposes of this
> hypothetical).  That strikes me as healthy pragmatism, not unhealthy
> propaganda.
>
>         Likewise, if the question is what the marginal costs are of the secret
> ballot (which I support, incidentally) compared to the marginal costs of some
> degree of secrecy in initiative petition signing (which I also support), it seems
> to me helpful to think about the pluses and minuses of each option while
> holding the other legal rules invariant, rather than putting on the table a
> possible (but I think implausible) abolition of absentee voting.  Perhaps taking
> such an approach, rather than assuming that all the other possible rule
> changes are also on the table, is actually a pretty healthy way of approaching
> matters.
>
>         Eugene
>
> > -----Original Message-----
> > From: law-election-bounces at department-lists.uci.edu [mailto:law-
> election-
> > bounces at department-lists.uci.edu] On Behalf Of Bev Harris
> > Sent: Tuesday, October 18, 2011 3:31 PM
> > To: law-election at uci.edu
> > Subject: Re: [EL] Secret signatures and secret ballots
> >
> > Below is an example of a propaganda technique called asserting the
> > foregone
> > conclusion (yep, it's given its own heading in the manuals I've seen, one of
> > which was created for the U.S. military):
> >
> > >                 But given that we do have absentee voting, and are unlikely
> > > to stop having it
> >
> > This is not a healthy kind of statement for a society that values public
> action,
> > but it's a great statement to dissuade a population from trying to do
> > anything.
> >
> > Just one more point; whereas Mr. Volokh indicates that absentee voting
> can
> > produce fraud in the form of a vote-buying scheme, the larger fraud in
> > absentee
> > voting takes place when someone with inside access inserts votes into the
> > pool
> > using the names of legitimate but irregular voters, without their
> knowledge.
> >
> > Best,
> >
> > Bev Harris
> > Founder - Black Box Voting
> > http://www.blackboxvoting.org
> >
> > * * * * *
> >
> > Government is the servant of the people, and not the master of them. The
> > people, in delegating authority, do not give their public servants the right
> > to decide what is good for the people to know and what is not good for
> > them to
> > know. We insist on remaining informed so that we may retain control over
> > the
> > instruments of government we have created.
> >
> > Black Box Voting is a nonpartisan, nonprofit 501c(3) elections watchdog
> > group
> > funded entirely by citizen donations.
> > http://www.blackboxvoting.org/donate.html
> > Black Box Voting
> > 330 SW 43rd St Suite K
> > PMB 547
> > Renton WA 98057
> >
> >
> > ----------------------------------------------------------------
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> >
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