[EL] Voting by mail cannot ensure a secret ballot, which is the cornerstone of democracy (The Boston Globe)

Tue May 12 11:40:41 PDT 2020

For the conservative jurists out there, this is what Justice Scalia had to say in Doe v Reed:

  *   We have acknowledged the existence of a First Amendment<https://www.law.cornell.edu/supct-cgi/get-const?amendmenti> interest in voting, see, e.g. , Burdick v. Takushi , 504 U. S. 428<https://www.law.cornell.edu/supremecourt/text/504/428> (1992) , but we have never said that it includes the right to vote anonymously. The history of voting in the United States completely undermines that claim.
  *   I am aware of no assertion of ballot secrecy that relied on federal or state constitutional guarantees of freedom of speech.
  *   I am aware of no contention that the Australian system was required by the First Amendment<https://www.law.cornell.edu/supct-cgi/get-const?amendmenti> (or the state counterparts). That would have been utterly implausible, since the inhabitants of the Colonies, the States, and the United States had found public voting entirely compatible with “the freedom of speech” for several centuries.

—
Marc Elias
Perkins Coie LLP
700 13th St, NW
Washington, DC 20005
(202) 434-1609

From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Lonna Atkeson <atkeson at unm.edu>
Date: Tuesday, May 12, 2020 at 2:15 PM
To: "larrylevine at earthlink.net" <larrylevine at earthlink.net>
Cc: "law-election at department-lists.uci.edu" <law-election at department-lists.uci.edu>, Jurij Toplak <jurij.toplak at um.si>
Subject: Re: [EL] Voting by mail cannot ensure a secret ballot, which is the cornerstone of democracy (The Boston Globe)

This is a real issue.

I have watched a lot of voting and watched people get “assistance” in an election setting and it is not neutral.  There have been quite a number of times where I’ve been glad there's a secret ballot.

Gerber et al’s work shows that people who think their ballot isn’t private vote differently than similarly situated people who believe their ballot is private.  This is not a trivial issue to be rejected out of hand.

Here’s their abstract:

Do people believe the votes they cast are truly secret? Novel items added to a nationally representative survey show that 25 per cent of respondents report not believing their ballot choices are kept secret and over 70 per cent report sharing their vote choices with others. These findings suggest that standard models of candidate choice should account for the potential effects of doubts about ballot secrecy. Consistent with this view, regression analysis shows that social forces appear to have a greater effect on vote choices among people who doubt the formal secrecy of the ballot. This analysis supports the broader claim that the intended benefits of institutional rules may not be realized if people's perceptions of these rules differ from their formal characteristics.

Here’s information to their article:

https://doi.org/10.1017/S000712341200021X<https://urldefense.proofpoint.com/v2/url?u=https-3A__doi.org_10.1017_S000712341200021X&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=6bAIsM0X_VW1D3nRvfo46op9WPZpOl51gUnmKT92dTI&s=Gs86-zPbUqnur5ihZu95TQYlDOJsSFiWhlXjJgfzbXs&e=>

Lonna

On May 12, 2020, at 11:54 AM, larrylevine at earthlink.net<mailto:larrylevine at earthlink.net> wrote:

  [EXTERNAL]
Whether voting by mail or marking a sample ballot to take to the polls, people have gathered around the table to discuss the candidates and issues for generations. Many of us have involved our kids in the discussion. Some have taken the kids to the polling place to watch them mark the actual ballot. This is a non-issue.
Larry

From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> On Behalf Of Michael McDonald
Sent: Tuesday, 12 May 2020 10:32 AM
To: Jurij Toplak <jurij.toplak at um.si<mailto:jurij.toplak at um.si>>
Cc: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] Voting by mail cannot ensure a secret ballot, which is the cornerstone of democracy (The Boston Globe)

FWIW, the California Supreme Court rejected a claim mail balloting should be deemed unconstitutional due to the loss of a secret ballot in Peterson v. City of San Diego (1983), finding a balance weighing in favor of increased access to lowered election administration costs.

https://law.justia.com/cases/california/supreme-court/3d/34/225.html<https://urldefense.proofpoint.com/v2/url?u=https-3A__law.justia.com_cases_california_supreme-2Dcourt_3d_34_225.html&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=6bAIsM0X_VW1D3nRvfo46op9WPZpOl51gUnmKT92dTI&s=Y0REOdxfVmWq7vpwdG7ocqUWe4zTCtMCfvCaodgb42s&e=>

============
Dr. Michael P. McDonald
Associate Professor, University of Florida
703-772-1440 (c)
352-273-2371 (w)
www.electproject.org<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.electproject.org_&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=6bAIsM0X_VW1D3nRvfo46op9WPZpOl51gUnmKT92dTI&s=hjnFPiOVxNGPmwSox2Py1jG8qDD619vgft2IIcG-MN0&e=>
@ElectProject

On Tue, May 12, 2020 at 7:40 AM Jurij Toplak <jurij.toplak at um.si<mailto:jurij.toplak at um.si>> wrote:
The Boston Globe published my view of voting by mail. A problem of families or employees voting together has been debated in the rest of the world for a century. In Austria-Hungary, in the early 20th century, voting in groups was a known problem.

Much mail voting takes place at the kitchen table, with family members filling out their ballots together. The elderly and disabled cast their votes alongside their caretakers. The more timid or needy or financially dependent family members, and those in nursing homes, will often follow the advice or expectations of those on whom they depend in order to gain sympathy or favor or to avoid conflict, intimidation, ridicule, or dislike. The US has fought for decades around the world to make sure that women, youth, elderly, and the disabled may all vote in privacy, without a husband or family head looking over their shoulder, because such a circumstance cancels the free and honest expression of a voter’s convictions.

https://www.bostonglobe.com/2020/05/12/opinion/push-mail-in-vote-gaining-steam-scrutiny/<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.bostonglobe.com_2020_05_12_opinion_push-2Dmail-2Din-2Dvote-2Dgaining-2Dsteam-2Dscrutiny_&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=6bAIsM0X_VW1D3nRvfo46op9WPZpOl51gUnmKT92dTI&s=Eu_QCpgIaLHlEBRgMgwA_lmpHjScfRToKOfTVmUM41E&e=>

Jurij
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election<https://urldefense.proofpoint.com/v2/url?u=https-3A__department-2Dlists.uci.edu_mailman_listinfo_law-2Delection&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=6bAIsM0X_VW1D3nRvfo46op9WPZpOl51gUnmKT92dTI&s=epTR3q-MdHM_DtK05WoPo39vmcQX7EwyYAa1l4RKQyc&e=>
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://department-lists.uci.edu/mailman/listinfo/law-election<https://urldefense.proofpoint.com/v2/url?u=https-3A__department-2Dlists.uci.edu_mailman_listinfo_law-2Delection&d=DwMFaQ&c=XRWvQHnpdBDRh-yzrHjqLpXuHNC_9nanQc6pPG_SpT0&r=mJZthOcamSml7FV7KXYLE6P2EQrjV525p9lKVucDNWI&m=6bAIsM0X_VW1D3nRvfo46op9WPZpOl51gUnmKT92dTI&s=epTR3q-MdHM_DtK05WoPo39vmcQX7EwyYAa1l4RKQyc&e=>

________________________________

NOTICE: This communication may contain privileged or other confidential information. If you have received it in error, please advise the sender by reply email and immediately delete the message and any attachments without copying or disclosing the contents. Thank you.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200512/5373a62c/attachment.html>