Last week’s New Yorker included a fabulously entertaining article by Harvard historian Jill Lepore, describing the history of voting in the USA. Here’s just a small sample, but it’s worth it to read the whole thing.
Americans used to vote with their voices—viva voce—or with their hands or with their feet. Yea or nay. Raise your hand. All in favor of Jones, stand on this side of the town common; if you support Smith, line up over there. In the colonies, as in the mother country, casting a vote rarely required paper and pen. The word “ballot” comes from the Italian ballotta, or little ball, and a ballot often was a ball, or at least something ballish, like a pea or a pebble, or, not uncommonly, a bullet. Colonial Pennsylvanians commonly voted by tossing beans into a hat. Paper voting wasn’t meant to conceal anyone’s vote; it was just easier than counting beans. Our forebears considered casting a “secret ballot” cowardly, underhanded, and despicable; as one South Carolinian put it, voting secretly would “destroy that noble generous openness that is characteristick of an Englishman.”
Lepore also describes an “original intent vs. spirit of the Constitution” argument that in its outlines feels familiar today, even though the specifics have changed:
Political parties, whose rise to power was made possible by the rise of the paper ballot, stepped in. Party leaders began to print ballots, often in newspapers: either long strips, listing an entire slate, or pages meant to be cut in pieces, one for each candidate. At first, this looked to be illegal. In 1829, a Boston man named David Henshaw tried to cast as his ballot a sheet of paper on which were printed the names of fifty-five candidates. Election officials refused to accept it. Henshaw sued, arguing that he had been disenfranchised. When the case was heard before the state’s Supreme Court, the decision turned on whether casting a printed ballot violated a clause in the state’s 1780 constitution, requiring a written one. “It probably did not occur to the framers of the constitution,” the Court observed, in a landmark ruling in Henshaw’s favor, “that many of the towns might become so populous as to make it convenient to use printed votes.” The Massachusetts constitution, only fifty years old, had already been outpaced by the times.
The big innovation — government printing uniform ballots — was still years away at that point, of course.
I find the state of California’s proposition system troubling. Unlike some states, California views the names of petition-signers to be secret. And, like all states, the votes cast in general elections are secret.
So a constitutional amendment (like, say, Proposition 8) can be put onto the ballot and passed by a majority (of any size) without anyone who actually votes for the amendment actually admitting to voting for it.
How is it possible to engage in discussion or debate–one of the cornerstones of our legislative system–when every step of the process of amending the Constitution is done entirely in secret?
Phil, I don’t see any lack of discussion or debate on Proposition 8. Why is having the names of the petition signers or the identities of which of the voters supported or opposed the proposition necessary to engage in discussion or debate?
In fact, in this day and age it seems to me that having to openly declare your support of one side of a controversy or another would tend to suppress debate and participation in voting out of fear of what extremist partisans of one position or another might do.
Then perhaps such controversial decisions should be left to professional legislators, elected by secret ballot, so that the issue can actually be discussed and debated?
Are you suggesting that even elected state congresspersons should vote by secret ballot, so that there’s no fear of suppression?
Phil makes an interesting point: should there even be voter referenda to alter a constitution?
The federal Constitution does not permit such. Instead, Art. V states, “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.”
In other words, there’s no way to change the U.S. Constitution except by the votes of Congress members or constitutional convention representatives, all of whom must debate and vote publicly.
In my state of Mass. (and in many other places throughout New England) many places still use town meeting votes. Stand and be counted, and all that.
There are a few results from this.
One is that serious minority positions tend to get treated as even more minority than they are. Especially the case when they’re a bit unpopular like “bring back cockfighting” or “eat the whales!” Fewer people want to get the cost of public association with an unpopular position, without any realistic chance of success.
Is this good? bad? People respond differently depending on who the minority is in their town. Is it good or bad to ask the few pro-environmental folks in a logging town to stand up and defend themselves at an open meeting? is it any better to ask the few pro-business folks in an eco-resort town to stand up and defend themselves? Obviously most answers are colored by environmental beliefs.
OTOH, secret ballots do allow a bit of what i might call moral dishonesty: where you claim to be Obama’s main supporter, but you don’t vote for him because you don’t like blacks. And so on.
Still, in the end, i think that we are better off with secret ballots, because they are closer to what people “really” think inside. We all take on public personas for many reasons 9some of them voluntary, some of them not). I like the provate votes better.
Then perhaps such controversial decisions should be left to professional legislators, elected by secret ballot, so that the issue can actually be discussed and debated?
This fails on the basis of the presumption that only deciding an issue via non-secret ballot permits an issue to be discussed and debated. I still don’t see the relationship between the two.
Are you suggesting that even elected state congresspersons should vote by secret ballot, so that there’s no fear of suppression?
Nope. There’s a difference between a private citizen voting their own individual views and a public official voting in representation of their constituents. Public officials are supposed to be accountable to others on how they vote. Private citizens are not.
Phil makes an interesting point: should there even be voter referenda to alter a constitution?
Here in Illinois we have a via media. The Illinois State Constitution requires that every 20 years a binding referenda be placed on the state-wide ballot asking “Shall a Constitutional Convention be called?” If it passes (a majority of all voters or 3/5 of those voting on the question), then the legislature must arrange for such (much as the Congress must call a Federal Constitutional Convention if 2/3 of the State legislatures vote for one), comprised of 2 people from each legislative district (which would make it 236 people). If an amendment is passed first by a simple majority of the Convention and then a simple majority of the State electorate it becomes a part of the Constitution. So in the end a simple majority is needed, but the amendment has to make it through a few hoops first.
It’s on the ballot this year, as it happens. All the politicians are lining up against it. They use the argument of “all the special interest groups will try to get extremist positions into the Constitution; what we have is working fine.” Well, bullshit. It’s working fine for the politicians, but not so good for the electorate and taxpayers. What we have is a public education system whose funding is based on property taxes that are destroying those on fixed income and that prevents poor municipalities to give decent educations to the parts of the public that need it most (since they have low property values and thus low property tax receipts). We have breathtaking corruption that is fed by minimal ethics regulations and an inability to recall public officials. Aaaand … ah, the list goes on. Me, I’m voting “Yes”. I haven’t seen the polls on it, but I pray it passes. Hell, I just might run to be part of the Convention.
As far your question of whether there should be voter referenda to amend a State constitution, are you asking this as a legal question or a philosophical one? From a legal viewpoint I don’t see that the fact that this differs from the Federal Constitution would make it legally improper. Philosophically, it comes closest to pure democracy than a lot of other processes. You might want to bump up the margin needed from a bare majority to 3/5 or 2/3, I don’t know. But I trust a bare majority of the electorate over a bare majority of a handful of Supreme Court justices with extremely limited accountability.
I should clarify; when I refer to voter referenda to amend the state Constitution, I don’t mean a referendum to call a Constitutional convention. I think it’s very good that Illinois, Connecticut and some other states have that question of whether there should be a convention on the ballot regularly. However, my understanding is that at such a convention, there would be representatives who would be present and participating in debate before making decisions.
In a democracy, and particularly on issues where our votes affect others, I think we ARE accountable to our fellow citizens for how we vote in direct referenda on particular proposals. I am accountable to my fellow citizens if I vote for or against a freeze on property taxes; I am accountable to my fellow citizens if I vote for or against their ability to marry persons of the same sex.
The idea that we are atomized individuals, utterly unaccountable to one another for our choices as voters, is a symptom of sickness in our democracy and an indication that the cult of the individual in American culture has gone beyond consumption and into what used to be thought of as “civic life.” One ought not vote for or against a constitutional amendment as some expression of individuality, another brand like NIKE — “I am a ‘values voter,’ I am a ‘green voter'” — but in serious consideration of what is at stake and after giving both sides a fair hearing.
The processes of legislatures and conventions lend themselves to better approximating such deliberation than does “direct democracy” in nations and states where people have ghettoized themselves into communities of the like-minded.
However, my understanding is that at such a convention, there would be representatives who would be present and participating in debate before making decisions.
That’s true. But the accountability those people have is pretty much purely personal. They would have to worry about reprisals from people angry with their votes, but they don’t stand for re-election.
In a democracy, and particularly on issues where our votes affect others, I think we ARE accountable to our fellow citizens for how we vote in direct referenda on particular proposals.
How? Should people be able to picket your house? Print up flyers criticizing you and passing them out? Should the threat of these things (plus the implicit threat of people doing illegal things like vandalizing your property or assaulting your person) be part of the civic process influencing your vote?
One ought not vote for or against a constitutional amendment as some expression of individuality, another brand like NIKE — “I am a ‘values voter,’ I am a ‘green voter’” — but in serious consideration of what is at stake and after giving both sides a fair hearing.
I agree on how people ought to approach these issues. What I fail to see is that a) we have a right to compel people to do this, b) what practical means there are to ensure that this is done and c) whether the tradeoff of a loss of current rights people have would be worth whatever benefit would be derived.
The processes of legislatures and conventions lend themselves to better approximating such deliberation than does “direct democracy” in nations and states where people have ghettoized themselves into communities of the like-minded.
I do favor a republican (note the small ‘r’) form of government over mass direct democracy. The idea that a smaller number of people whose full-time job it is to examine issues in detail and to be periodically accountable to the public for their continued tenure in such a job is superior works for me. I don’t think, though, that direct democracy cuts off debate on an issue, which seems to have been your initial premise. There’s plenty of debate.
Should people be able to picket your house? Print up flyers criticizing you and passing them out? Should the threat of these things (plus the implicit threat of people doing illegal things like vandalizing your property or assaulting your person) be part of the civic process influencing your vote?
Should they be part of the civic process influencing the votes of representatives to a convention or a legislature?
You seem to have confused me with Phil. Please point out where I said direct democracy “cuts off debate.”
So, a right has been taken away from me by my fellow Californians. But not by anybody that I know–as far as I can tell.
Prior to the election, if I asked people I know–friends, neighbors, folks I work with–what their views on Prop 8 were, they said they were with me, and against it. Is there a chance that some of them were lying to avoid offending me? Possibly. I’ll never know, because we just amended the Constitution entirely in secret.
I did see a lot of “discussion” about Prop 8. For example, in the form of political ads. But since political ads are exempted from most “false advertising” liability, they were able to make ridiculous claims, claims that were so outlandish they couldn’t be printed in the voter guide.
Who believed that crap? Who knows? The constitution was amended entirely in secret.
It’s possible that the people I encounter happen to agree with me politically. If I went to the mall and started against random strangers what their political views were, would I get an opportunity for honest discussion? Do you think that would be the case?
I’m not suggesting that there was zero discussion about the amendment. But I do think that calling the majority of the communication that was lobbed like misinformation bombs in this election season “debate” stretches the definition of debate. In a real debate, you have to listen to what your opponent is saying and evaluate it–not because of the “rules” of debate, but because in a moment, you will be responding to the merits of the argument that they’re making. It’s a form of two-way communication. It’s not for nothing that every legislative body in the free world allows for some form of debate.
I’m not saying that all elections should be conducted via a “stand up and be counted” system. But I do propose the following:
1.) A petition to get something onto a ballot should be a public document. There ought to be a logistical difference between the mechanics of introducing legislation and the mechanics of conducting an election. At some point in the process of creating laws, there ought to be a human being–someone you can talk to–connected to the actual legislation, and not just to the communication surrounding it (such as commercials and rallies.) Because ballot initiatives are voted on by millions of people, it makes sense that the electorate have the opportunity to communicate with some of the thousands of people who signed to put the initiative on the ballot.
2.) Consitutional amendment should not be conducted solely by ballot initiative. The purpose of a constitution is to serve as a foundational document for the laws of a land, and by its very nature, it should be able to withstand the whims of the age. This is not to say that it should be impossible to amend a Constitution. However, at some point in the process of amending a Constitution, the amendment ought to be considered by a body whose decisions are fully public and accountable. Among other things, this might allow an actual debate, where the people responsible for making a decision communicate directly with each other. This communication would allow at least the appearance that the people responsible for decision-making listen to, evaluate, and respond to the counter-arguments for their position.
I wondered about that, about a Bradley effect regarding gay-rights ballot issues. Prop 8 was running about 50/50 last week, I recall, and I predicted, with sorrow, that it would pass, figuring the polls were skewed by people giving the “right” answer (as well as good but inattentive people who thought a “yes” vote would proactively put same-sex marriage in the CA constitution).