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Friday, October 19, 2012

There's A Difference Between 'Constitutional Right' And 'Good Idea'

Digby writes:

We've had a number of disturbing reports these last couple of weeks about employers instructing their workers to vote for Romney or risk losing their jobs...This is a form of intimidation, to be sure, designed to immobilize political activity for the Democrats, even in employees' private lives.

I have been making the case that at least we have a secret ballot, which protects the vote of everyone, even if these GOP authoritarians are attempting to restrict their employees political activity. A reader wrote in to tell me that I am wrong about that.
I know much of the nation was shocked when Justice Antonin Scalia blithely announced that the constitution doesn't guarantee a right to vote in Bush vs Gore. I think they would be equally shocked to find out that some judges don't believe they have the right to a secret ballot either. 
Without the secret ballot we don't have a democracy, period.

While I don't disagree there's are many merits to Australian ballot, I found this post to be full of...inaccuracy or at least imprecision.

First of all, I hate to be on the same side as Tony Vaffanculo, but he didn't blithely announce there is no right to vote.  The decision states:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.

Unfortunately, that is absolutely correct, no matter how stupid or anachronistic it is.  The Constitution grants the States complete power over Elector selection, so we only have an equal right to vote as every other citizen in our state should the Legislature deign to give us such through elections.

And interestingly enough, we can even turn to a textual reading of the Constitution to see there's no assumption of ballots, secret or otherwise, in the election process, with the only explict, glaring exception being how Electors vote.  In general, the mechanism through which voting occurs is left pretty much up to the States unless Congress decides to intervene.

Time and again I have noted that the franchise is fundamentally sacrosanct and ought to be expanded.  Still, there are many ways to exercise the right to vote, and each has pros and cons as do most things in the Cosmos.  We still have Town Meeting in Fletcher, VT, for example, after we debated for months and had a public meeting about whether to move to Australian ballot.  Is there really no democracy here?

In Vermont we do have an explicit right to elections that are "free and without corruption," and ballots are expressly mandated for electing certain state officers.  At least in our state one could make an argument that secret ballots are necessary for free and pure elections, but even then our constitution doesn't go into that much detail about how we must vote.  It's still left up to regulations by the General Assembly--in fact, it wasn't until the end of the 19th century that we started implement Australian ballots in any fashion.

To be sure, elections could be rather untidy and corrupt, which did drive various reform movements:

Ballot reform leagues were organized not only to secure enactment of a secret voting law but also to implement its enforcement. The language of the petition circulated by the New York Ballot Reform League was typical:
The undersigned believe that the public interests demand the prompt enactment of a law embodying the following principles:

1st. The ballots should be printed and distributed at the public expense. (This takes away the excuse for assessing candidates.)

2d. The names of all candidates for the same oBce ahould be printed upon the same ballot. (This destroys dealing and trading between candidates, makes independent nominations possible, and makes it impossible for the name of any candidate to be withheld from the voter.)

3d. The ballot should be delivered to the voter within the polling-place on election day, by sworn public officials. (This abolishes the paid political worker.)

4th. Only ballots so delivered should be voted, the voter guaranteed absolute privacy in preparing his ballot, and the secrecy of the ballot made compulsory. (This prevents intimidation and destroys bribery at the polls.)

But as we fight against the practical impacts of voter ID laws, let's not forget how the noble secret ballot was also used originally to similar purpose:

There are considerable differences of opinion as to whether or not illiterate voters should receive assistance in marking their ballots. Mr. Dutton, thefather of the Australian ballot, disapproved of aiding the illiterate voter.

The usual arguments against aiding the illiterate voter are: first, that a man who is too ignorant to vote correctly is not worthy of the right to vote, because he cannot form that intelligent opinion essential to good government; secondly, that by assisting an ignorant voter you may make it possible to know how an elector votes and so open the door to corruption; thirdly, that the desire to vote will act as an incentive to acquire an education.

Those in favor of helping the ignorant elector declare, first, that he has as much interest in voicing his needs by means of the ballot as the educated, and to deny him assistance is to disfranchise him; secondly, that if he votes without assistance, he has to do so in a haphazard way and may vote for the wrong candidates; thirdly, that there is little danger of corruption, as the election officers are bound to secrecy.

The first Australian-ballot act passed in the United States, the Louisville act, made no provision for aiding illiterates, and required every voter to retire alone to one of the compartments and, unaided, to mark his ballot. The Kentucky Court of Appeals in the case of Rogers v. Jacob declared that this provision violated the section of the constitution requiring all elections to be free and equal.

"It practically operates to deprive a person who is unable to read or write of a free and intelligible choice of those he may desire to vote for, and in fact makes free suffrage as to them a matter of chance or accident." The influence of this decision was far-reaching in determining the case in favor of assisting the illiterates.

To re-emphasize this point:

The adoption of the secret ballot provides a clear example of the first stage of disenfranchisement. Considered a reform to protect the privacy of the voter and prevent intimidation at the polls, the secret or Australian ballot operated as a literacy test to disenfranchise the uneducated. Prior to the secret ballot, voters went to the polls with printed ballots distributed by political parties with their candidates’ names on them.
The secret ballot system prohibited the use of this material and required voters to make their choices from the numerous names and offices printed on official ballots, a task that many of them could not perform. Whatever standards of “good government” the secret ballot may have represented, in the South it “furnishes . . . the only method by which they can get rid of the great bulk of the colored vote in a legal, peaceful and unobjectionable manner,” a journalist reported in 1892.

I would certainly agree that today the secret ballot is an important part of our electoral processes today.  However, I cannot brook any hyperbolic argument that suggests there is a constitutional right to such a thing or that without it, we have no democracy (pedantry notwithstanding).


October 19, 2012 in Constitution, Schmonstitution | Permalink


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