Stephen Holmes (draft for Paris, June 3-4)

The Secret Ballot and the Lives of Others

One side asserts that the secret ballot protects the autonomous voter from bullying pressures brought by malign or presumptuous forces. The other side replies that the secret ballot permits the autonomous voter to indulge his insalubrious motives at the public’s expense. This classical standoff will never be resolved. Its unending nature implies that political anonymity is systematically ambivalent in its moral and political effects. That conclusion may even be worth engraving in bronze. The same can be said about “transparency.” It is good or bad depending on who is seeing through whom and for what purpose and with what effects. Otherwise, the fertility of the professors’ stale back-and-forth about voter anonymity can be reasonably questioned. So why not reverse perspectives and ask not about the effect of the secret ballot on the voter’s own motives, incentives, moral character, and vulnerability but rather about epistemological impoverishment that the institution inflicts upon the incognito voter’s fellow citizens? After all, no one has a right to the kind of anonymity that threatens serious harm to others. There is no right, for example, to board an airplane anonymously. So let us imagine: After a contentious discussion at the faculty meeting of an unnamed department of Such-and-Such University, where many but not all faculty members had spoken out and uninhibitedly disclosed their opinions about a case under consideration, a secret-ballot vote was held to offer tenure to an outside candidate.1 The result, in my hypothetical, is 39 yeses, 1 abstention, and 20 nos. The vote fails; the candidate, due to the faculty’s well-established 2/3rds rule, is turned down. Immediately after the result is reported, two of the most outspoken opponents of the candidate became pale (almost shaking) with voter’s remorse. If they had known how the vote was going to turn out, they would have switched from no to yes. This imagined chain of events has enigmatic implications. At the very least, its oddity may shed some fresh light on a general topic that, alas, is not being discussed at Jon’s conference for the first time. If the preference of a voter, even of a voter who had been given ample lead time to think through the issues, is so unstable that it can change completely, in the blink of an eye, on the basis of new knowledge about how others have voted, secret-ballot voting may be registering not informed preferences but rather than something perhaps less worthy of collective deference, such as, perhaps, preferences developed under conditions configured to manufacture selective ignorance, in a kind of artificial darkness that, as could be expected, has systematically ambivalent effects.

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1 This hypothetical may or may not resemble a real case. If something like the narrated incident actually occurred, names and place would be omitted anyway because such details would be irrelevant to the theoretical argument at issue, because anonymity confounds gossip, and because telling tales out of school is disallowed.

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The incident that I have imagined admits of several interpretations, of course. (I invite others.) Because, as it turned out, the difference between acceptance and rejection was a single “no” vote, every “no” voter knew, after the fact, that his or her vote, had it been “yes,” would have turned the tables. That alone was bound to bring home a sharp personal responsibility for the outcome of the election, a responsibility that is ordinarily blunted when margins of victory or defeat are wider. Thus, unlike the members of a firing squad, some of whose rifles are loaded with blanks, no “no” voter in this hypothetical could consolingly imagine that his or her ballots/bullets were personally innocent of shooting down the candidate. This was perhaps especially poignant for “no” voters who were close to the edge and who could have, on the basis of their personal evaluation of the case, tipped either way. (Admittedly, they might not have blanched so noticeably if their previous speeches had not memorably informed the 39 “yes” voters that a single personal “no” had decided the outcome. As Hamilton remarked, “Regard to reputation has a less active influence, when the infamy of a bad action is to be divided among a number than when it is to fall singly upon one.”2) But what makes the instantaneous voter’s remorse imagined in this case seem striking, from a theoretical perspective, is what it reveals about secret voting. Ordinarily the secret ballot is justified by its capacity to protect the anonymity of the voter: “Anonymity is a shield from the tyranny of the majority.”3 In this case, those whose preferences visibly and publicly flipped, after the outcome was known, had absolutely no anonymity to lose. Their positions had been broadcast aloud to the entire assembly before the ballot. What the secrecy of the ballot did was not to eliminate the stigma of a “no” vote or to shield the autonomy of the voter from conformity-inducing peer pressure. Rather, at least in the hypothetical that interests me, the secret ballot deprived some swing voters of vital knowledge that would have decisively shaped their choice and conceivably brought that choice better into line with their genuine preferences well-understood. The remorseful voters had been procedurally insulated not from intimidation but from information. As James Madison famously wrote, to be capable of self-government, people “must arm themselves with the power which knowledge gives.”4 So what if the secret ballot disarms voters of some of the power which knowledge (of what others plan to do) gives? What if the secret ballot hindered them from accurately perceiving the balance of forces in the room? What if the secret ballot prevented voters from realizing that they were headed for a knife’s-edge decision? And what if, had they been informed that such a hair’s-breadth outcome was likely, they would have preferred “acquittal” (tenure) to “conviction” (refusal to hire)? Secrecy is frequently associated with cognitive failures, especially a failure to correct errors and make rational midstream readjustments.5 That is the implication of the following passage from a 1960s Congressional report: “Secrecy—the first refuge of incompetents—must be at a bare minimum in a democratic society, for a fully informed

2 Federalist #15. 3 514 U.S. 334, McIntyre v. Ohio Elections Commission (1995), 23. 4 9 The Writings of James Madison 103 (Gaillard A. Hunt ed., 1910) 5 Daniel Patrick Moynihan, Secrecy: The American Experience (Yale University Press, 1998), p. 205.

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public is the basis of self-government.”6 Asking why the US government was so incomprehensibly oblivious to the signs of the coming Soviet collapse, then-Senator Daniel Moynihan wrote: “The answer has to be, at least in part, that too much of the information was secret, not sufficiently open to critique by persons outside government.”7 Should not such impassioned pleas to replace a culture of secrecy with a culture of openness prompt us to reexamine a possible association between secrecy and irrationality in the electoral realm as well? Is it possible that the secret ballot enhances individual autonomy by eroding collective rationality? To the historical sources of exactly this classical thesis I will turn in section II. For now let us stick with the structural difference between deliberation and decision as revealed by my hypothetical episode. In deliberation, ideally understood, I can change what I initially consider my well-informed and thoughtful opinions based on the information that I absorb during a debate in which prospective voters speak out and listen sequentially. I this process, I learn, among other things, about how others intend to vote. Preference switching during such a process can be irrational (based on a conformist impulse) or rational (based on an appreciation of the superior or additional information held by others). But the key structural point is that, in deliberation, positions are revealed provisionally, personally, and sequentially. In a secret-ballot vote, on the contrary, positions are revealed anonymously, simultaneously, and definitively. The simultaneity requirement, in particular, severely hinders the cue-taking that characterizes most decision-making within human (and perhaps animal) groups. Presumably, the decision making capacity of members of the human species evolved in choice situations where sequential decision making was habitual, allowing followers to economize mental costs by taking cues from leaders. Hence, the simultaneity of the secret ballot (blocking the order effects associated with ordinary processes of sequential cue-taking or following suit) is likely to place formidable strains, for good or ill, on the hard-wired decision making capacity of homo sapiens, occasionally producing post-suffragium depression. Such considerations may lead us back to the insight that “a reasoning process that takes account of the decisions of others is entirely rational even if individuals place no value on conformity for its own sake.”8 If we back up a bit and think not of a single election but of a series of elections, we can see that sequentiality, whereby later decision makers can incorporate information that they glean from the voting behavior of earlier decision makers, can make a substantial contribution to democratic rationality. Consider the 6 Moynihan, Secrecy, p. 168. 7 Moynihan, Secrecy, p. 79. 8 Sushil Bikhchandani, David Hirshleifer, Ivo Welch, “A Theory of Fads, Fashion, Custom, and Cultural Change as Informational Cascades,” Journal of Political Economy (1992), vol. 100, no. 5, p. 995; James Madison makes this point in a discussion of international affairs, where a decent respect for the opinion of mankind signals proper humility not a relinquishment of sovereignty: “An attention to the judgment of other nations is important to every government for two reasons: the one is, that, independently of the merits of any particular plan or measure, it is desirable, on various accounts, that it should appear to other nations as the offspring of a wise and honorable policy; the second is, that in doubtful cases, particularly where the national councils may be warped by some strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed. What has not America lost by her want of character with foreign nations; and how many errors and follies would she not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?” (Federalist #63).

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function that Mill ascribes to sequential multiparty elections: “It is useful that there should be a periodical general muster of opposing forces, to gauge the state of the national mind, and ascertain, beyond dispute, the relative strength of different parties and opinions.”9 On election day, in a liberal democracy, the citizenry paints a collective portrait of itself, informing itself by this method of the relative strength of different factions and parties. Mill’s assumption here is that such a collectively observed joint self-portrait will inject a spirit of moderation into the next round of elections, since no party will be able to sustain the illusion that it deserves to prevail 100 percent of the time. But this “relativizing” effect, which teaches factions to see themselves as “parties” (that is, as partial), although active across a sequence of elections, is blocked by simultaneous secret-ballot voting in any single election. Negative associations with bank runs and herd behavior, admittedly, are not entirely unreasonable. Sequentiality does not inevitable produce more rational decisions than simultaneity. The innovation of Super-Tuesday, designed to limit the disproportionate influence of early primaries in small and unrepresentative states, reflects the correct perception that sequencing introduces an illegitimate element of arbitrariness in political outcomes due to the empirically observable human proclivity to bandwagoning. Nevertheless, high-profile experiences with irrational order effects should not be allowed to obscure telling counterexamples. The carefully engineered destruction of everyday sequentiality in the making of decisions can also produce a potentially detrimental erasure of information vital for rational decision making.10 In his paper for this conference, Elster quotes Bentham to the opposite effect: “neither the process of crying Aye or No, nor that of holding up hands, can be rendered so exactly simultaneous, but that, if the slave is bonâ fide upon the watch, he may wait to observe the part taken by the master’s voice or hand, so that he may take the same.”11 The point is obvious but does not reach our hypothetical which, as I have presented it, involves no element of hierarchical subservience. What the secret ballot concealed in my hypothetical was not “the will of the seducer” (Bentham’s phrase) but the likely aggregate sense of the community. Those who suffered voter’s remorse were not disappointed lemmings. The signals blocked by simultaneity of voting arguably prevented them from making an autonomous decision about the right way to vote. I believe—but am not certain—that I am pointing to the same issue here that Elster wants to raise when he comments: “one may not want the conduct of the juror to be concealed, “at the long run”, from other jurors.”12 No FOIA-like process is available for voters curious about how other voters are about to vote. But the anomaly presented in the above cautionary tale might have been eliminated had a straw ballot been held. One historical question, then, is When did straw ballots

9 Mill, Considerations, CW XVIII, 502. 10 Notice the reference to temporal sequence in Rousseau’s theory of correct voting: “qu'on ne peut jamais s'assurer qu'une volonté particulière est conforme à la volonté générale qu'après [my emphasis] l'avoir soumise aux suffrages libres du people” (Du contrat social, 2.7) 11 Jon Elster, “Publicity and Secrecy in Jury Proceedings,” p. 20; citing Bentham’s Political Tactics.. 12 Elster, “Publicity and Secrecy in Jury Proceedings,” p. 21.

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originate? An empirical question is Where, under what circumstances, are straw ballots likely to be used?13 The normative question is: What arguments can be adduced for and against straw ballots? Presumably the very institution of straw ballots registers the perceived importance, in certain settings, of giving voters, before they commit themselves irreversibly, pertinent and potentially position-altering information on which to base their decision about how to vote. Congressional votes are not anonymous, but mechanisms similar to a straw ballot14 have been worked out over time precisely to allow congressmen to base their decisions about how to vote on information about how others, in the aggregate, are likely to vote. One commentator discusses “the curious Congressional phenomenon of seemingly unimportant procedural votes that are in fact more important than final votes on passage.” These pantomime votes are useful for permitting better informed strategic behavior by better informed voters:

The unobtrusive procedural vote, which may be closely fought, reveals the balance of forces between the two contending sides. Once it is clear which side is likely to win, legislators may feel that their vote in favor of an unpopular side no longer serves any useful purpose. They can thus switch their vote to support the more popular side on final passage.15

Why should voters, in relatively small groups such as the tenured faculty in university departments, be deprived of information about the rough balances of forces between the two contending sides in a tenure fight, that is, of the sort of information made available to members of Congress by an innocuously surreptitious sleight of hand? There may be a good answer to this question. But its very posing points to an aspect of secret voting that has little to do with protecting individuals from reprisal for voting in a way that irritates or disappoints others. This is because, among other reasons, straw ballots can be held anonymously, with only the provisional aggregate outcome known. The anomaly to which I have been trying to draw your attention so far might also have been eliminated by a roll-call vote, whereby swing voters tending “no” might have, as the votes accumulated, seen the writing on the wall and switched their votes to “yes” to avoid a just-short-of-the-mark refusal to hire, a queasy-making outcome that might give the impression that the faculty does not know how to reconcile differences amicably. A roll-call vote, however, would have eliminated not only simultaneity but also anonymity. This brings us to an entirely different set of issues, perhaps more central to the majority of papers being discussed at the conference. By eliminating anonymity, a roll-call vote

13 The head of the U.N. is elected after a series of straw ballots: Daya Gamage, “UN Secretary General Election: Straw Poll at Security Council favors South Korean candidate,” Asian Tribune, September 30, 2006). 14 Congress may have been compelled to devise functional equivalents because Robert’s Rules of Order disparages straw ballots as “meaningless and dilatory.” 15 R. Kent Weaver, “The Politics of Blame Avoidance,” Journal of Public Policy (1986), p. 388.

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might have provided swing voters tending “no” with fine-grained information about the intra-faculty factions who were voting for and against. In fact, it might have revealed that factionalism was surreptitiously at work. If such swing voters tending “no” had a reason to dissociate themselves from a clandestinely conspiring bloc of “no” voters who were voting “no” for reasons that appear unpalatable to the hesitators, a roll-call vote (sequential and non-anonymous) might have produced the opposite outcome. Needless to say, this would depend on the order of the roll-call and whether or not the potential swing voters gave their votes far enough down the line to respond to the signals emitted by prior voters. It would also depend, as mentioned, on at least one “no” voter being genuinely torn, on the basis of personal inquiry into the case, between acceptance and rejection: “the more uncertain an individual is about the correctness of his judgment, the more susceptible he is to informational influences on his decisions.”16

II The association of the secret ballot not with the protection of autonomy but with the loss of potentially vital information seems to go back to the very first critics of the institution, that is to those who protested when the secret ballot replaced voice voting in the Roman Republic. In the Third Book of De Legibus, Cicero objects to the by-then well-established innovation, arguing that “in giving suffrages and votes, nothing can do better than an open vivâ voce declaration.” He is referring to all manner of popular votes, including the election of magistrates, the making of laws, and the convicting or acquitting of criminal suspects.17 He is not disturbed by the mutual ignorance among the popular electorate created [EXACT DATE?] when that important institutional innovation, the secret ballot, replaced voice voting. What disturbs Cicero, apparently, is that the individual votes of the people are no longer optimatibus nota, transparent to the nobles, who are thereby deprived of their ability to keep an eye on what they see as the errors of judgment that naturally characterize decision making by the lower classes. Do not, he writes, “give the people a mask and veil, by which they may keep the more honourable citizens in ignorance of their individual sentiments, and thus make the ballot a mere cover for corrupt and hypocritical votes.”18 He then adds, somewhat obscurely: “If the laws indeed could but hinder intrigues, then the people might be allowed the ballot as a vindicator of liberty, provided it were so laid open and freely exposed to all honourable and worthy citizens, that their authority might be blended with this popular privilege, thus leaving the people the power of expressing their deference for the aristocracy.”19 If this complaint about the secret ballot from the viewpoint of those frustratingly prevented from

16 Bikhchandani, Hirshleifer, Welch, “A Theory of Fads, Fashion, Custom, and Cultural Change as Informational Cascades,” p. 1003. 17 “I confess, my Atticus, we have now to treat on a very difficult question, and one already much discussed,—that question is, whether, in case of suffrages at the election of magistrates, or in the formation of laws, or in the judgment of criminals, the votes should be given openly by poll, or secretly by ballot” (De Legibus) [In Cicero’s time, the secret ballot was obligatory in criminal trials?] 18 Cicero, De Legibus, Book III 19 Cicero, De Legibus, Book III; Yakobson argues that Cicero was suggesting a voluntary not obligatory exposure of plebeian votes to the optimates (Alexander Yakobson, “The Secret Ballot and its Effect in the Late Roman Republic,” Hermes, vol. 123, no. 4, 1995, p. ).

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knowing how the voters voted seems hopelessly antiquated today, we should remember that it was repeated almost verbatim by one of the founders of enlightenment liberalism. Montesquieu, indeed, reformulated the Ciceronian thesis as a fundamental law of democracy:

Sans doute que, lorsque le peuple donne ses suffrages, ils doivent être publics [for example, by a show of hands, as in classical Athens]; et ceci doit être regardé comme une loi fondamentale de la démocratie. Il faut que le petit peuple soit éclairé par les principaux, et contenu par la gravité de certains personnages. Ainsi, dans la république romaine, en rendant les suffrages secrets, on détruisit tout; il ne fut plus possible d'éclairer une populace qui se perdait.20

Presumably less impressed by the ability and willingness of the nobles to enlighten the little people, Rousseau soon cast off Montesquieu’s neo-Ciceronian approach, explaining the shift from open to secret voting in republican Rome as an adaptation to moral corruption and vote-selling by citizens who had unfortunately lost their former civil spirit:

Quant à la manière de recueillir les suffrages, elle était chez les premiers Romains aussi simple que leurs moeurs, quoique moins simple encore qu'à Sparte. Chacun donnait son suffrage à haute voix, un greffier les écrivait à mesure: pluralité de voix dans chaque tribu déterminait le suffrage de la tribu; pluralité des voix entre les tribus déterminait le suffrage du peuple; et ainsi des curies et des centuries. Cet usage était bon tant que l'honnêteté régnait entre les citoyens, et que chacun avait honte de donner publiquement son suffrage à un avis injuste ou à un sujet indigne; mais, quand le peuple se corrompit et qu'on acheta les voix, il convint qu'elles se donnassent en secret pour contenir les acheteurs par la défiance, et fournir aux fripons le moyen de n'être pas des traîtres. Je sais que Cicéron blâme ce changement, et lui attribue en partie la ruine de la république. Mais, quoique je sente le poids que doit avoir ici l'autorité de Cicéron, je ne puis être de son avis: je pense au contraire que, pour n'avoir pas fait assez de changements semblables, on accéléra la perte de l'État. Comme le régime des gens sains n'est pas propre aux malades, il ne faut pas vouloir gouverner un peuple corrompu par les mêmes lois

20 De l’Esprit de lois, Livre II, Chapitre II; in the same chapter, notably, Montesquieu asserts that “Le suffrage par le sort est de la nature de la démocratie; le suffrage par choix est de celle de l'aristocratie,” noting that military leaders (strategoi) were among the few public officials in Athens elected by voting rather than chosen by lot. Tellingly, even a liberal such as Bentham can rehash such neo-Ciceronian arguments, with the paradoxical proviso that the secret ballot does not reduce the tutelary influence of the upper classes on the lower clases: “Those whose situation does not permit them to acquire political knowledge, have need of guidance from more enlightened persons; but happily the secret mode of election does not diminish the influence of mind on mind: all other things being equal, the most deserving individual in elective assemblies will have the ascendency over the more obscure member;—the man distinguished by his services will have more votes than he who does not rise above the common level. The opulent proprietor, the employment of whose fortune presents a spectacle to the observation of the multitude, will be more readily taken as a model for imitation, than the individual who moves in a narrower circle. This preponderance of the aristocracy is as natural as it is just and necessary” (Political Tactics, Ch. XIV, §2). Such “preponderance” presumably presupposes structurally guaranteed sequentiality whereby the unenlightened classes, before making up their minds, can learn how the enlightened classes think.

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qui conviennent à un bon peuple. . . On distribua donc aux citoyens des tablettes par lesquelles chacun pouvait voter sans qu'on sût quel était son avis21

Bentham closely follows Rousseau on this point. Speaking of the change from public to secret voting in Rome, he too stresses that historical context decisively determines the value or disvalue of the secret ballot: “It may be, for example, that at the period [my emphasis] when secret suffrages were introduced at Rome the change was desirable. Cicero thought otherwise.”22 And John Stuart Mill, despite his famous argument against the secret ballot (about which more below) makes an identically Rousseauist claim. His methodological premise, again, is the dominance of historical context over abstract normative rules: “The strongest case for the ballot is when the mischievous power of the Few over the Many is increasing.” This was precisely the case, he argues, when the secret ballot was introduced in Rome: “In the decline of the Roman republic the reasons for the ballot were irresistible. The oligarchy was yearly becoming richer and more tyrannical, the people poorer and more dependent, and it was necessary to erect stronger and stronger barriers against such abuse of the franchise as rendered it but an instrument the more in the hands of unprincipled persons of consequence.”23 Just as Montesquieu opposed the secret ballot in Rome on the grounds that “Il faut que le petit peuple soit éclairé par les principaux, et contenu par la gravité de certains personnages,” Mill supports the secret ballot not in his own day but in the context of the late Roman Republic as a protection of le petit peuple against unprincipled persons of consequence. That the value of open vs. secret voting depends decisively on historical context is a truism to which I will return by way of conclusion. Before consigning Cicero’s argument, recycled by Montesquieu and others, to the dustbin of aristocratic prejudice, let us try to distill some nugget of insight from its outmoded husk. For example, it seems perfectly reasonable to say that we become less sure how to value certain votes if we know nothing about the identity of the voters. When a certain well-known dunce on the faculty opens his mouth at a meeting, everyone immeditaley discounts what he has to say. When he votes anonymously, on the other hand, his vote weighs as much as the wisest and most respected member of the faculty. Quite obviously, therefore, the anonymity of the ballot significantly dilutes the informational value of depersonalized signals sent by incognito voters, depriving signal-readers of the kind of background information to which all of us habitually resort when decoding personalized messages from people we know. This was obviously what the Supreme Court had in mind in its recent Citizens United decision when it wrote: “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”24

21 Rousseau, Du contrat social, 4.4; Bentham follows Rousseau here: 22 Bentham, Political Tactics, Ch. XIV, §2 23 John Stuart Mill, Considerations on Representative Government. Chapter 10. 24 Citizens United v. FEC,, No. 08-205, slip op (Jan. 21, 2010); cf. the Court’s historical sensitivity to “the state interest in providing the voters to whom the message is directed with a mechanism by which they may better evaluate its validity” in First National Bank of Boston v. Bellotti (1978), 435 U.S. 765.

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In an open deliberate process, we can inquire into the reasons why others disagree with us and try to sway them to change their minds by capitalizing, for example, on our knowledge of their other commitments and beliefs. That the secret ballot hindered analogous attempts by the nobles to sway the people at Rome, by occluding their identities and beliefs, is surely one of the things Cicero had in mind. And the general point he was making is not limited to the class context in which it was originally embedded. The way the secret ballot deprives democratic citizens among themselves of important mutual knowledge on which to recalibrate their votes seems to be one of the main considerations of those modern liberal writers, such as Mill, who also opposed the secret ballot. Before turning to Mill, however, let us look briefly at a modern anti-liberal, not neo-classical, argument that the the secret ballot is fundamentally undemocratic. I have in mind Carl Schmitt’s discussion of the subject in his Verfassungslehre of 1928. According to Schmitt’s somewhat idiosyncratic vision, the secret ballot undermines the primacy of the state, dissolves democracy of the assembled people, and eradicates “the public” in a genuine sense, enshrining instead the dominance of bourgeois-liberal “private man.” In a liberal-constitutional regime, which Schmitt calls “the bourgeois Rechtsstaat,” there is, above all, no place for popular sovereignty. To convey a flavor of his argument, I cite at length:

The election or vote, more precisely, is a secret individual vote. The method of the secret individual vote, however, is not democratic. It is, rather, an expression of liberal individualism much in the way that its early advocate in the nineteenth century, Jeremy Bentham, was a typical liberal. In the struggle against impermissible electoral influencing by the government and against other misuses, the demand for secret individual ballots makes sense and is relatively justified. Nevertheless, it is necessary to understand its nature correctly and to be clear that in principle it is part of the circle of ideas associated with liberal individualism and contradicts the political principle of democracy. For the logically consistent execution of the secret individual election and the individual vote transforms the distinctly democratic, or political figure, the state citizen or citoyen, into a private man who, from the sphere of the private, whether or not this private sphere may be his religion or his economic interest or both together, expresses a private opinion and casts his vote. Secret individual ballot means that the voting state citizen is isolated in the decisive moment. In this way, the gathering of those present and any acclamation has become impossible. The connection between the assembled people and vote has been completely broken up. The people elect and vote no longer as the people.25

Why exactly does the secret ballot contradict the political principle of democracy? It does so, in Schmitt’s eyes, because democracy requires the people to vote in each others’ presence, visible and audible to each other, not isolated from one another in the decisive moment and certainly not abusing the vote to express their private conscience or

25 Carl Schmitt, Constitutional Theory (Duke University Press, 2008), p. 273.

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economic interest. To this general theory of the antidemocratic nature of the secret ballot, Schmitt adds a futuristic dystopia:

It is fully conceivable that one day through ingenious discoveries, every single person, without leaving his apartment, could continuously express his opinions on political questions through an apparatus and that all these opinions would automatically be registered by a central office, where one would only need to read them off. That would not be an especially intensive democracy, but it would provide a proof of the fact that the state and the public were fully privatized. It would not be public opinion, for even the shared opinions of millions of private people produces no public opinion. The result is only a sum of private opinions. In this way, no common will arises, no volonté générale; only the sum of all the individual wills, a volonté de tous, does.26

Schmitt obviously fancies that his contrast between liberal individualism and democratic populism places his black-and-white reading of the secret ballot as a profoundly antidemocratic institution in the tradition of Rousseau. He, too, denies that public opinion is the “arithmetical sum” of private opinions. And it is true that Rousseau had contrasted the privatization of the right to vote, reflected in the willingness of citizens to sell their vote for money, with la volonté générale:

Même en vendant son suffrage à prix d'argent, il [the voter] n'éteint pas en lui la volonté générale, il l'élude. La faute qu'il commet est de changer l'état de la question et de répondre autre chose que ce qu'on lui demande; en sorte qu'au lieu de dire, par un suffrage: "Il est avantageux à l'État", il dit: "Il est avantageux à tel homme ou a tel parti que tel ou tel avis passe."27

Schmitt’s paraphrase of Rousseau’s original may initially seem accurate, therefore. But the gulf between them is wide. For example, Rousseau does not, like Schmitt, view the secret ballot as the triumph of that corrosive individualism which breeds citizens who are willing to sell their votes. On the contrary, Rousseau sees the secret ballot as a remedy for a tendency to vote-selling (or to allowing one’s vote to be determined by personal or factional interests rather than by the interests of the community as a whole) that accompanied corruption in the late Republic. Rather than seeing the secret ballot, in a Schmittian vein, as a sacrifice of democracy on the altar of liberal individualism, Rousseau saw the secret ballot as a faute-de-mieux adaptation of democracy to deplorable but inevitable social change which of course includes the rot of social privatism. One of the weakest points of Schmitt’s analysis is his reliance on the unsophisticated polarity of individual vs. public. Given the multiplicity of what Rousseau called “les petites sociétés” (namely clans, sects, factions and so forth) in every possible social order, a dualistic contrast between selfishness and public-spirit is a simplification. Social pluralism turns out to be crucial for understanding the secret ballot as Bentham, Schmitt’s “typical liberal,” understood it: 26 Schmitt, Constitutional Theory, p. 274. 27 Rousseau, Du contrat social, 4.1.

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The cases in which publicity would be dangerous, are those in which it exposes the voters to the influence of seductive motives more powerful than the tutelary motives which it furnishes. In judging whether a motive ought to be referred to the class of seductive or tutelary motives, it is necessary to examine whether, in the case in question, it tend to produce more good or more evil—whether it tend to favour the greatest or the smallest number. If, for example, a nobleman be called to decide between his own personal interest and the interest of the body of the nobility,—the motive, whatever it may be, which leads him to prefer this interest to his own, deserves to be called tutelary. If this same nobleman be called to decide between the interest of the body of the nobility, and that of the total mass of the citizens,—this same motive loses its tutelary quality, and can only be considered as a seductive motive. Hence l’esprit de corps, a social principle, when it leads to the sacrifice of the interest of the individual to that of the particular society, becomes anti-social when it leads to the sacrifice of the great interests of the public.28

This contextual theory of the value or disvalue of the secret ballot reflects Bentham’s simple insight that l’esprit de corps can be profoundly antisocial if it subordinates the individual to a faction. Contrariwise, “corrosive” individualism can be patriotic if it gives the voter some distance from les petites sociétés that dominate his or her daily existence and thereby frees him or her to consider the good of the wider collectivity. This is something Schmitt obviously knew from experience even though he did not incorporate it into his theory. Finally, to Schmitt’s nightmare of liberal-individualist voters registering their private preferences through some sort of technical apparatus without ever having to leave their apartments, the best (again anticipatory) response comes from another typical liberal, but this time an opponent of the secret ballot. Here is Mill:

The proposal which has been thrown out of allowing the voting papers to be filled up at the voter's own residence, and sent by the post, or called for by a public officer, I should regard as fatal. The act would be done in the absence of the salutary and the presence of all the pernicious influences. The briber might, in the shelter of privacy, behold with his own eyes his bargain fulfilled, and the intimidator could see the extorted obedience rendered irrevocably on the spot.29

Putting Schmitt’s dystopia to one side for a moment, Mill’s point is an important one, given recent attempts to boost sagging voter turnout (due to safe seats and excessive certainty about who will win) by introducing postal voting in both the US and the UK.30 Voting by mail not only destroys the public ritual of voting in a common place; it allows people to privatize their vote, in the crude sense of sell it to the highest bidder, by abolishing the secrecy of the vote. What Mill’s adamant hostility to postal voting reveals,

28 Bentham, Political Tactics, Ch. XIV, §2. 29 Mill, Considerations, Chapter 10. 30 George Monblot, “Death of the Secret Ballot,” Guardian (29 April 2003).

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and what Schmitt’s simplistic opposition between secrecy and publicity ignores, is that secret voting, in the liberal democratic tradition, is secret voting that takes place in public, where everyone can observe that secrecy is being maintained. Schmitt’s idea that the secret ballot is somehow essentially undemocratic is dubious for other reasons as well, most notably the near-simultaneous introduction of the secret ballot in every industrialized country along with the extension of mass suffrage. The surge of new voters made voice voting impracticable because too time-consuming.31 Schmitt’s conceit that the secret ballot symbolizes the privatization of the state is also cast into doubt by the historical fact that, before the secret ballot was introduced, at least in the US, ballots with slates of candidates (and sometimes recognizable at a distance) were printed privately by political parties and brought by voters to the polls. In oral argument devoted to John Doe # 1 et al v. Reed et al held on April 28, 2010, Justice Scalia provided a historical reminder of the remarkably recent vintage of secret voting, mentioning: “the fact that for the first century of our existence, even voting was public—you either did it raising your hand or by voice, or later, you had a ballot that was very visibly red or blue so that people knew which party you were voting for.”32 And here comes the anti-Schmittian detail. The secret ballot, when it was eventually introduced at the end of the 19th century, was printed by the state and delivered to polling places by state officials. In other words, the secret ballot, far from privatizing the voting process, deprivatized it. Far from marginalizing the state, it “brought the state back in” by replacing the chaotic, ad hoc informality that had previously prevailed and introducing a bureaucratized system that forced parties to register ahead of time with state-level government officials in order to be present on the ballot.33 Schmitt’s hallucinatory claim about the anti-statist essence of the secret ballot, then, is of interest mainly as a foil to help bring the opposite truth into focus, namely the intimate historical connection between the secret ballot and state building, that is, and the growing entanglement of government bureaucracy in the democratic process. Before leaving Schmitt entirely, however, I want to reinsert his thinking into some sort of historical context. Helpful in this regard is a famous passage from one of the great tracts of American liberalism, Herbert Croly’s The Promise of American Life, published seventeen years before the Verfassungslehre. Notice that Croly, too, objects to the voter being “isolated in the decisive moment,” as if he were going to a confessional or (to indulge in a double anachronism) visiting her psychoanalyst. Here the great American liberal is commenting on the disappointed promise that the secret ballot would diminish the power of the professional politician: 31 This practical consideration is not meant to deny the dubiousness of Mill’s claim, in opposition to the secret ballot, that in 1860s Britain “the power of coercing voters has declined and is declining; and bad voting is now less to be apprehended from the influences to which the voter is subject at the hands of others than from the sinister interests and discreditable feelings which belong to himself, either individually or as a member of a class” (Considerations, Chapter 10). 32 Oral argument, John Doe # 1 et al v. Reed et al. 33 John Reynold and Richard McCormick, “Outlawing ‘Treachery’ - Split Tickets and Ballot Laws in New York and New Jersey. 1880-1910,” Journal of American History (1986).

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Well! the Australian ballot has been adopted more or less completely in the majority of the states; and it has undoubtedly made open electoral corruption more difficult and less common than it once was. But it has not diminished the personal and partisan allegiance on which the power of the local "Boss" is based; and it has done the professional politician as little serious harm as have the civil service laws. Neither can it be considered an ideal method of balloting for the citizens of a free democracy. Independent voting and the splitting of tickets is essential to a wholesome expression of public opinion; but in so far as such independence has to be purchased by secrecy its ultimate value may be doubted. American politics will never be "purified" or its general standards improved by an independence which is afraid to come out into the open; and it is curious that with all the current talk about the wholesome effects of "publicity" the reformed ballot sends a voter sneaking into a closet in order to perform his primary political duty. If American voters are more independent than they used to be, it is not because they have been protected by the state against the penalties of independence, but because they have been aroused to more independent thought and action by the intrusion and the discussion of momentous issues. In the long run that vote which is really useful and significant is the vote cast in the open with a full sense of conviction and responsibility.34

Croly’s preference for voters to “come out into the open” and vote responsibly under the eyes of the community may or may not have its roots in the voting practices of certain American religious sects. But his democratic distrust of the secret ballot is not, on the surface, altogether unlike Schmitt’s, at least if we abstract from Schmitt’s seeming fondness for soccer-stadium acclamations.35 His association of the secret ballot with being “afraid to come out into the open,” in fact, was echoed recently by the most conservative member of the Supreme Court. In the oral argument cited above, Justice Scalia concluded his history lesson about the relative novelty of the secret ballot in America with a curiously Ciceronian claim that public voting requires civic courage: “running a democracy takes a certain amount of civic courage.”36 We could summarize this point, in the conventional manner, by saying that the secret ballot demeans and corrupts the motives of voters by making them sneakily conscious that no one knows how they are voting. But an alternative interpretation is also possible. Public voting, after rough-and-tumble participation in open debate of public issues, may provide others with valuable information.37 It may assure other voters, in a way impossible under secret

34 Herbert Croly, The Promise of American Life (1911), Chapter 11. 35 I frustratingly can’t put my hands on the English translation at the moment, but the passage I have in mind runs as follows, “Wenn aber der Wille des Volkes sich gelegentlich in unwiderstehlichen Akklamation und einer entschiedenen widerspruchslosen öffentlichen Meinung äußert, so hat das mit dem Verfahren gehemer Einzelabstimmung und statistischer Feststellung der Mehrheit nichts zu tun” and so forth. Verfassungslehre, p. 279. 36 Oral argument, John Doe # 1 et al v. Reed et al. 37 Cf. “It is true that these public debates—these manifestations of party—may sometimes, in popular elections, produce a tumultuous ferment; but this is a small evil, compared with that of restraining the expression of the public feeling. It is by this freedom that the people are interested in persons and things,

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voting, that they will not be alone if they refuse to knuckle under to private pressure or accept private deals and side-bargains from the Boss. Consider now the central argument put forward half a century before Croly by another liberal, John Stuart Mill: “The spirit of vote by ballot—the interpretation likely to be put on it in the mind of an elector—is that the suffrage is given to him for himself; for his particular use and benefit, and not as a trust for the public. . . . For if it is indeed a trust, if the public are entitled to his vote, are not they entitled to know his vote?” Although Mill begins with the mental state of the voter, his ultimate emphasis here is on the public’s right to information. He would not have used Schmitt’s extreme formulation: “The connection between the assembled people and vote has been completely broken up.”38 But Mill did object to the way the secret ballot erects a Chinese wall between the voter and the public. When reading the following passages from Chapter 10 of Mill’s Considerations on Representative Government, try to discover the points at which Mill would disagree with Schmitt’s assessment, cited above, that “the individual vote transforms the distinctly democratic, or political figure, the state citizen or citoyen, into a private man who, from the sphere of the private, whether or not this private sphere may be his religion or his economic interest or both together, expresses a private opinion and casts his vote.”39 The “moral mischief” produced by the secret ballot, according to Mill, lies in the idea it conveys that the vote is “a right, not a trust.” And he continues:

In whatever way we define or understand the idea of a right, no person can have a right (except in the purely legal sense) to power over others: every such power, which he is allowed to possess, is morally, in the fullest force of the term, a trust. But the exercise of any political function, either as an elector or as a representative, is power over others. Those who say that the suffrage is not a trust but a right will scarcely accept the conclusions to which their doctrine leads. If it is a right, if it belongs to the voter for his own sake, on what ground can we blame him for selling it, or using it to recommend himself to any one whom it is his interest to please? A person is not expected to consult exclusively the public benefit in the use he makes of his house, or his three per cent stock, or anything else to which he really has a right.40

The vote has no more to do with personal preferences than “the verdict of a juryman,” which must be guided exclusively by a sense of right and wrong. [How did juries vote in 1860s UK? Did they use a secret ballot? How does the reality of jury voting at the time affect Mill’s analogy?] Formulated differently, but familiarly, public opinion is not reducible to the sum of private opinions. This ideal can be operationalized if private

and that the firmest bonds are formed between the electors and the elected” (Bentham, Political Tactics, Ch. XIV, §2). 38 Schmitt, Constitutional Theory, p. 273. 39 Schmitt, Constitutional Theory, p. 273. 40 Mill, Considerations, Chapter 10.

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choices, and the reasons for them, are voiced and definitively set forth in a mutually transparent way:

It is strictly a matter of duty; he is bound to give it according to his best and most conscientious opinion of the public good. Whoever has any other idea of it is unfit to have the suffrage; its effect on him is to pervert, not to elevate his mind. Instead of opening his heart to an exalted patriotism and the obligation of public duty, it awakens and nourishes in him the disposition to use a public function for his own interest, pleasure, or caprice; the same feelings and purposes, on a humbler scale, which actuate a despot and oppressor.41

In this passage, Mill’s initial stress lies almost entirely on the effect of secrecy on the mental condition of the voter. Rousseau, remember, describes civic corruption in precisely this way: “au lieu de dire, par un suffrage: "Il est avantageux à l'État", il [the voter] dit: "Il est avantageux à tel homme ou a tel parti que tel ou tel avis passe."42 The secret ballot, Mill concurs, corrupts the citizenry by leading them to believe that this quintessential public act imposes no social obligations but simply allows him to choose “as he feels inclined.” And this leads Mill to his famous conclusion: “the duty of voting, like any other public duty, should be performed under the eye and criticism of the public; every one of whom has not only an interest in its performance, but a good title to consider himself wronged if it is performed otherwise than honestly and carefully.”43 If Mill were told, in the contemporary manner, that mandatory disclosure of the identity and beliefs of the voter might have a “chilling” effect, he would not necessarily disagree. But he would add that chilling includes disincentivizing irresponsible behavior. Better yet, he would say that mandatory disclosure functions as a stimulant as well as a depressant, encouraging public-regarding behavior and discouraging public-disregarding behavior. This may or may not be true, or (more likely) its truth or falsity may vary according to context. Mill’s emphasis, in any case, insensibly shifts from the effect of the secret ballot on the voter’s character to the wrong done to the public by an artificial deprivation of information, even if that information seems exclusively a matter of the voter’s integrity or lack thereof. The decision to vote should be made not deferentially but at the very least with an understanding of the reasons why others might choose differently:

To be under the eyes of others—to have to defend oneself to others—is never more important than to those who act in opposition to the opinion of others, for it obliges them to have sure ground of their own. Nothing has so steadying an influence as working against pressure. Unless when under the temporary sway of passionate excitement, no one will do that which he expects to be greatly blamed for, unless from a preconceived and fixed purpose of his own; which is always evidence of a thoughtful and deliberate character, and, except in radically bad men, generally proceeds from sincere and strong personal convictions. Even the

41 Mill, Considerations, Chapter 10. 42 Rousseau, Du contrat social, 4.1. 43 Mill, Considerations, Chapter 10.

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bare fact of having to give an account of their conduct is a powerful inducement to adhere to conduct of which at least some decent account can be given.44

Fellow citizens have a legitimate interest in how you vote and therefore a moral right to know how you vote, because public voting is an integral part of a culture of justification and reason-giving. Secret voting atrophies the citizen’s capacity to reason his or her way to decisions in a political society where contrary positions are vigorously defended. Allowing others to know how you vote will not compel conformism, as presumably occurs in the crowd atmospherics of a Schmittian acclamation, but will rather incentivize voting for rival candidates or causes but always (ideally) for honorable reasons that can be publicly explained. Such well-reasoned or rationally defensible votes do not necessarily have to be optimatibus nota, as in Cicero, but they do have to be mutually known by the generality of citizens. Here is one of Mill’s examples:

Suppose that there were a question before the Legislature specially affecting women; as whether women should be allowed to graduate at Universities; whether the mild penalties inflicted on ruffians who beat their wives daily almost to death's door should be exchanged for something more effectual; or suppose that any one should propose in the British Parliament, what one State after another in America is enacting, not by a mere law, but by a provision of their revised Constitutions—that married women should have a right to their own property. Are not a man's wife and daughters entitled to know whether he votes for or against a candidate who will support these propositions?

The secret ballot may do some good if it protects the voter from intimidation, but it may do, on balance, more bad than good, because it erodes the culture of justification and reason-giving, perhaps even encouraging two-faced behavior. Public voting, Mill argues, can “compel deliberation, and force every one to determine, before he acts, what he shall say if called to account for his actions.” The thought here is not especially esoteric. People often behave more honorably or prudently when observed than when unobserved. To artificially structure the voting process so that voters can be observed when they give reasons but unobserved when they crystallize those reasons into a final choice is to seed the public with distrust in the power of public reasoning to control the citizen’s behavior. This is a principle we fully embrace when discussing elected officials. Why (that is Mill’s question) should the same considerations have no bearing on those who elect them?

III Our evaluation of the appropriateness of anonymity in the electoral context depends largely on the analogies that appear most apposite. For example, Mill’s analogy between the citizen’s voting to elect a representative and the juryman’s voting to acquit or convict a defendant is worth exploring (and questioning) at greater length. It may be useful, therefore, to look briefly at the arguments against witness anonymity in criminal trials. A 44 Mill, Considerations, Chapter 10.

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glimpse into this arena may presumably shed some additional light on deeper principles guiding the value or disvalue for other people of keeping someone’s identity concealed. I begin with Blackstone. The jury trial is an institution or organized procedure with well-defined rules and roles. The centerpiece of the jury trial is the “public examination of witnesses” which Blackstone calls “the English, way of giving testimony” even though it was already known among the Romans,45 because it is foreign to the civil law. Here is Blackstone’s summary of the virtues of public examination and cross-examination:

THIS open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law: where a witness may frequently depose that in private, which he will he ashamed to testify in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is once taken. Besides the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled: and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial.46

Written testimony has less probative value than spoken testimony delivered in public and under oath because, when testimony is delivered in written form, the jurors cannot watch the witness squirm as he answers questions. Viva voce testimony provides an excellent opportunity for the jurors to sift the truth:

In short by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike, when their depositions are reduced to writing, and read to the judge, in the absence of those who made them: and yet as much may be frequently collected from the matter of it.47

The rule favoring spoken over written testimony may protect the innocent from being falsely convicted. But it also improves the cognitive performance of the legal system. This cognitive function can be excessively burdened under grants of witness anonymity. According to several recent news reports: “Police and prosecutors have increasingly resorted to promising anonymity in recent years to persuade frightened witnesses to

45 Quintilian “lays down very good instructions for examining and cross-examining witnesses viva voce” (Ibid., p. 374). 46 Ibid., pp. 373. 47 Ibid., pp. 374.

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testify. The device has been successful in tackling gun crime, say police.”48 The problematic consequences of such grants of witness anonymity, and the continued vitality of Blackstonian thinking on the bench, are well-described in the following snippet:

The intense political activity was sparked when the £6m trial of two men for the murder of businessman Charles Butler, 50, was halted at the Old Bailey. Defendants Douglas Johnson and David Austin are likely to face a retrial next year. . . .The decision to stop the proceedings came as a direct result of the ruling last Wednesday in the case of Iain Davis, who was convicted of a double murder at the Old Bailey in 2004. The five law lords said he was denied a fair trial because the identities of three witnesses who named him as the gunman were concealed. Witnesses gave evidence from behind a screen, their voices were distorted, and lawyers were banned from asking any questions that would reveal their identities. . . . The judges said English common law and European human rights law require that a defendant be able to confront his accusers and cross examine them properly. Lord Bingham, the senior law lord, said Davis's counsel was required "to take blind shots at a hidden target," adding: "A trial so conducted cannot be regarded as meeting ordinary standards of fairness."49

Such cases bring us back to the systematically ambivalent effects of anonymity. Anonymous tiplines, for instance, can provide leads that would otherwise never come to the attention of the police; on the other hand, they regularly send the police on wild-goose chases following up erroneous leads maliciously furnished by prank tipsters. In the case just cited, anonymity made it difficult to test the credibility of the witness. It may protect the speaker from reprisal (a basic argument for the secret ballot), but it also deprives the listeners of information useful for measuring the value of the signal being sent (a central argument against the secret ballot). Indeed, as Elster mentions in his paper, such “protections” in criminal proceedings are bound to convey the message to any jury capable of putting two and two together that the defendant is extremely dangerous and probably guilty as charged. This is a natural consequence of Bentham’s principle: “Suspicion always attaches to mystery. It thinks it sees a crime where it beholds an affectation of secrecy; and it is rarely deceived. For why should we hide ourselves if we do not dread being seen?”50 At an extreme, we might analogize secret ballots to “des letters anonymes” or unsigned accusations attacked by Montesquieu.51 Seventy years later, along the same lines, Benjamin Constant argued there is no greater crime against liberty than for a man to be “jugé d’après des informations secrètes, transmises, pour ainsi dire, clandestinement à ses juges” and “sans que l’accusé eût permission de les refuter.”52 Having spent time in Paris 48 Deborah Summers, Vikram Dodd and Clare Dyer, “PM announces emergency legislation to allow anonymous evidence in trials,” Guardian (25 June 2008). 49 Summers, Dodd and Dyer, “PM announces emergency legislation to allow anonymous evidence in trials.” 50 Bentham, Political Tactics, Ch. XIV, §2 51 De l’esprit des lois, Book 12, Ch. 24. 52 “Lettre à M. Odillon‐Barrot sur l’affaire de Wilfrid Regnault condamné à mort” (1818), Cours de politique constitutionnelle (Paris: Librairie de Guillaumin, 1872), Vol. 2, p. 398; see also pp. 409‐411. 

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during the 1790s, he was deeply concerned with “ténébreuses délations,”53 that is, the danger posed to personal autonomy (or modern freedom) by malicious and especially anonymous informants. The following passage on “la liberté de dénoncer,” drawn from Constant’s Commentaire sur l’ouvrage de Filangieri (1822-24) is typical. He is writing about anonymous informing:

la liberté de dénoncer a des inconvénients qui peuvent être infiniment graves. La haine, l’envie, toutes les passions basses ou malveillantes, se prévaudront de cette liberté. L’innocence pourra être calomniée; les citoyens les plus irréprochables se trouveront à la merci d’un ennemi caché . . . c’est rarement par zèle et par désintéressement que les hommes se portent à des demarches qui ont quelque chose d’odieux, et que, sur cent dénonciations, il est probable qu’à peine une seule aura été dictée par l’amour de la justice ou la haine du crime . . . Le magistrat qui, sur une dénonciation secrète, fait jeter dans les fers l’homme dénoncé, commet un acte injuste et inexcusable54

High evidentiary standards for arrest, conviction and punishment are designed not only to tie the hands of potential tyrants, in other words, but also to prevent witness malice, deliberate disinformation furnished by private parties acting under cover of darkness, from poisoning the system of criminal justice and hijacking ostensibly impartial authority for blatantly partial ends. Malicious informing by unknown délateurs triggers punishment without requiring that a reason be given and allowing no form of legal defense: “que la dénonciation soit un mensonge, c’est ce qui leur importe peu.”55 The threat posed by anonymous délateurs to civic tranquility was evident in France throughout Constant’s active political life, starting with the Revolution. According to François Furet and Denis Richet, “La délation, jugée infamante sous l’Ancien Régime, devient une vertu et un devoir parce qu’on est en république.”56 The relevance of the issue of secret informers and anonymous witnesses for our discussions presumably does not need spelling out. Anonymity certainly helps prevent reprisals against informants and witnesses; but it also burdens other decision makers with lack of essential knowledge that could well make their decisions more accurate and rational.

IV In the Talley case, Justice Black famously said that “It is plain that anonymity has sometimes been assumed for the most constructive purposes.”57 The emphasis here should fall on “sometimes.” The impressive weight of counterexamples should be even more present to the mind when we interpret the word “may” in Justice Stevens’ later 53 Discours de M. Benjamin Constant à la Chambre de Députés (Paris: Ambroise Dupont et Compagnie, 1828), Vol. 2., p. 158 (22 July 1822); he already discussed this issue in Des suites de la contre­révolution de 1660 en Angleterre (1799), pp. 90‐94. 54 Commentaire sur l’ouvrage de Filangieri (Paris: Les Belles Lettres, 2004), p. 238. 55 Recueil d’articles 1820­1824 (from an article of 12 July 1823), p. 320. 56 François Furet and Denis Richet, La Révolution Française, p. 211. 57 Talley v. California (1960), 362 U. S. 65.

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elaboration on the Talley principle: “quite apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity.”58 Yes, that is obvious true, and this is precisely why anonymity threatens to corrode democracy by opening the door to fraud, by encouraging the spread of deceptive messages that may have important effects on the lives of others. To deepen our inquiry into the information loss produced by anonymity in the electoral context, I want now to glance at the case of John Doe #1 et al v. Reed, mentioned briefly above, and which is currently being decided by the Supreme Court. The issue in this case is the right of those who signed a referendum petition, calling for the repeal of a Washington State law providing civil-union rights to homosexual couples, without granting them the right to marry. The petition garnered enough signatures for a referendum to be placed on the ballot, but the referendum was defeated. In the aftermath, gay activist groups asked the Secretary of State of Washington State to release the names and addresses of the petition signers. The gay rights activists claimed, perhaps ingenuously, that they wanted a chance to discuss the issue rationally with the petition signers and to break down stereotypes for the sake of democratic debate and even social reconciliation; but the petition signers feared, perhaps reasonably, that a plot was afoot to use their names and addresses the harass them with hate mail and worse. The question before the court is the right of the petitioners to initiate a legislative process anonymously. How one comes out on this issue, formally, depends on the analogy one adopts when classifying the activity of signing referendum petitions. If signing referendum petitions is like voting or pamphleteering, a right to anonymity seems constitutionally secure. If, on the contrary, the activity of signing referendum petitions is more like legislating or donating money to a political campaign, a mandatory disclosure law such as Washington State’s would seem to be perfectly constitutional. The question is, which set of analogies makes most sense. Washington State claims that disclosure of the petitioners’ names is warranted as “providing Washington voters with information about who supports placing a referendum on the ballot.”59 Their argument seems consonant with Mill’s position that “the exercise of any political function, either as an elector or as a representative, is power over others.”60 According to Washington State, “Referendum petition signers have not merely taken a general stance on a political issue; they have taken action that has direct legislative effect.”61 Since repealing a state law is an exercise of power—that would be Mill’s argument—those who exercise that power must do so in the open and take personal responsibility for their initiative. Bentham’s thesis seems to support the same conclusion: “Exactly in proportion as the vote of the elector is determined by his own will, and not by that of somebody who is his master, his position is similar to that of a member of Parliament, and publicity is indispensable.”62

58 McIntyre v. Ohio Elections Commission (1995), 514 U.S. 334. 59 14602 60 Mill, Considerations, Chapter 10. 61 14604 62 Bentham, Political Tactics, Ch. XIV, §2

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The petitioners object to this line of reasoning, claiming that compulsory disclosure of the names and addresses of petition signers will subject their decision to the bullying of a community of activists committed to making their lives miserable. Under such pressure, to paraphrase Bentham, the signature of such a petition signer will not be “determined by his own will.” In this way, the democratic process will be chilled. Petitioners rely, interestingly, on earlier court decisions that associate freedom to petition with the right to vote. In MacIntyre v. Ohio Elections Commission (1995), the court wrote of "a respected tradition of anonymity in the advocacy of political causes,” and then added that: “This tradition is perhaps best exemplified by the secret ballot, the hard-won right to vote one’s conscience without fear of retaliation.” Following this analogy, the court-protected anonymity of the vote should be extended to the anonymity of advocating political causes. In any case, no one should be subjected to unpleasant personal repercussions, petitioners argue, because of their participating in the democratic contest about the rightness or wrongness of legislation. A case can be made that a hidden agenda behind the request for disclosure of the petitioners’ names and address is to initiate a campaign of harassment of the petitioners. A case could also be made that a hidden agenda behind the petititoners’ argument is to overturn compulsory campaign finance disclosure laws that inhibit the ability of Big Money to influence elections without revealing their economic stake in the outcome. Having no chance to attack campaign finance disclosure laws directly, Big Donors see an opening created by the harassment of those who funded California Proposition 8, the referendum that successfully outlawed gay marriage in California. But we can put hidden agendas aside for the moment and focus instead on the argument, which opposes the citizen’s autonomy, that is his right to participate in politics without being harassed, to the citizenry’s need for information to help weigh the significance and political implications of ballot initiatives. These topics were at least fleetingly addressed in oral argument before the Court on April 10, 2010. Here are a few revealing excerpts. James Bopp, Jr. is the attorney for the petitioners arguing that the mandatory disclosure of the names of the petition signers should be struck down as unconstitutional.

JUSTICE STEVENS: Isn't there another possible public interest? Would it be legitimate public interest to say, I would like to know who signed the petition, because I would like to try to persuade them that their views should be modified? Is there public interest in encouraging debate on the underlying issue? MR. BOPP: Well, it's possible, but we think this information is marginal. In other words, the – it’s much more important – JUSTICE STEVENS: Well, it does identify people who have a -- a particular point of view on a public issue. And if you have the other point of view, don't you have an interest in finding out who you would like to convince to change their minds?

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MR. BOPP: Well, we -- we think it's a -- a very marginal interest. The Ninth Circuit recently ruled that if you give a small contribution to an initiative there's not -- I mean, nobody cares. So why should it be publicly disclosed when it's so marginal? JUSTICE SCALIA: What about just -- just –what about just wanting to know their names so you can criticize them? (Laughter.) MR. BOPP: Well JUSTICE SCALIA: Is -- is that such a bad thing in a democracy? MR. BOPP: Well, what is bad is not the criticism, it's the public -- it's the government requiring you to disclose your identity and belief. JUSTICE SCALIA: But part of the reason is so you can be out there and be responsible for the positions you have taken. MR. BOPP: Well, then why don't they require both sides? JUSTICE SCALIA: So that people -- people can criticize you for the position you have taken. MR. BOPP: Then why don't they require both sides if that was the purpose? JUSTICE SCALIA: What do you mean, "both sides"? The other side hasn't signed anything. MR. BOPP: The other side (Laughter.) JUSTICE SCALIA: When they sign something, they will be out there for public criticism as well. MR. BOPP: Okay. But this is a one-way street. JUSTICE SCALIA: Oh, this is such a touchy-feely, oh, so sensitive about -- about any (Laughter.) JUSTICE SCALIA: You know, you can't run a democracy this way, with everybody being afraid of having his political positions known.

The questions raised by both Stevens and Scalia go far beyond the state’s need to certify the petitions by establishing that the signers are who they claim to be. Stevens wonders if the petition-signer’s anonymity might conceivably inhibit democratic debate, as if the anonymous signer wanted to use a megaphone while wearing earplugs, to speak but not to be spoken to. The speaker’s autonomy, according to this line of questioning, must be weighed against the preconditions for collective self-government. “Signing” anonymously allows the signers to avoid developing publicly presentable reasons for their initiative, just as Mill would have argued. As Mill wrote: “Even the bare fact of having to give an account of their conduct is a powerful inducement to adhere to conduct of which at least some decent account can be given.”63 If anonymous petition signing reduces the incentives for the petition signers to adhere to conduct of which at least some decent account can be given it also prevents those opposed to the petition signers’ initiative from trying out counterarguments and presenting proponents with potentially knock-down counterevidence. So here we come back to the intuition that the secret ballot is somehow at odds with democratic politics. To repeat Mill’s words: “To be under the eyes of others—to have to defend oneself to others—is never more important than to those who act in opposition to the opinion of others, for it obliges them to have 63 Mill, Considerations, Chapter 10.

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sure ground of their own. Nothing has so steadying an influence as working against pressure.”64 Scalia, for all we know, takes a somewhat different approach, reviving the language of Croly, implying that it is unmanly to dish it out without taking it: “the people Washington evidently think that this is not too much of an imposition upon people's courage, to -- to stand up and sign something and be willing to stand behind it.”65 Signing a petition furtively, as if one were “sneaking into a closet” 66 or perhaps a porn shop, seems as undignified as a high school whispering campaign. Just compare these sniveling petition signers with the signers, say, of Charter 77 to see what kind of spineless individuals we are dealing with, he seems to imply. Part of the rationale behind mandatory publicity is “so you can be out there and be responsible for the positions you have taken.”67 In other words, Scalia focuses on the moral weakness of someone who wants to stand up and be heard but only when cowering behind a protective curtain. His position might dovetail with Stevens’s if he means to imply (which he may or may not) that people who are ill-at-ease with criticism can’t be trusted to make intelligent public decisions. If I had to describe the basic difference between Stevens and Scalia on this issue, I would say that Stevens may suspect that the petitioners’ desire for anonymity reflects a desire to hide motives of which no “decent account” (Mill) may be given. That would certainly not be the way Scalia sees the issue. Here is another snippet from the same oral argument, this time with the Washington State Attorney-General. Interesting is the direct commentary on the secret ballot:

CHIEF JUSTICE ROBERTS: Counsel, if the State had a law that you could disclose voters and for whom they voted, would that implicate First Amendment interests? GENERAL McKENNA: Yes, Mr. Chief Justice, we would -- we do believe that First Amendment interests would be implicated by revealing how people voted, and we don't see a legitimate State interest in knowing how people voted, only JUSTICE SCALIA: So the country was acting unconstitutionally for a whole century before we adopted the Australian secret ballot? Do you really think that? GENERAL McKENNA: No, Justice Scalia. I JUSTICE SCALIA: That it was unconstitutional for a whole century not to have a secret ballot? GENERAL McKENNA: No, Justice Scalia, I didn't say that I thought that the secret ballot was constitutionally required. I was asked by the Chief Justice whether some First Amendment interests would be implicated. They probably would be. CHIEF JUSTICE ROBERTS: What would the First Amendment interests be? GENERAL McKENNA: Well, the First Amendment interest in how you vote? CHIEF JUSTICE ROBERTS: Yes.

64 Mill, Considerations, Chapter 10. 65 Justice Scalia in the oral argument. 66 Herbert Croly, The Promise of American Life (1911), Chapter 11. 67 Scalia in the oral argument.

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GENERAL McKENNA: You know, it might be implicated by a potential chill from voting, if you know your vote is going to be revealed. CHIEF JUSTICE ROBERTS: Do you think having your name revealed on a petition of this sort might have a chilling effect on whether you sign it? GENERAL McKENNA: Mr. Chief Justice, some chill may result, just as some chill may result from having your campaign contributions disclosed, or the fact that you have registered to vote and provided your name, address, your voting history is being disclosed. So some chill might be -- might result, but we do not think that it is significant enough. CHIEF JUSTICE ROBERTS: You don't think revealing that you are a voter has the same chilling effect as revealing how you voted, do you? GENERAL McKENNA: No, I do not. I think how you voted would have a much greater chilling effect than the fact that you are registered to vote. And -- and, of course, this Court has not ruled on whether the secret ballot is, you know, a constitutional right. If -- if it is, then is town hall voting in New England unconstitutional? Is the caucus system in Iowa for presidential candidates unconstitutional? The Court in this case does not have CHIEF JUSTICE ROBERTS: I thought you told me that the First Amendment interests were implicated with respect to the secret ballot, that you couldn't require people to reveal how they voted. GENERAL McKENNA: We don't -- we don't know if this Court would rule that the vote could never be revealed. We know that in some places, votes are done in public. We know that before the late 1800s, there was no secret ballot. We just -- we don't know what the constitutional ruling would be. But we -- we do know that in this case, it's not necessary for the Court to reach that -- that determination,

Scalia, as is well known, claims to be an originalist. For anyone defending originalism, obviously, the relatively late historical emergence of the secret ballot to the American democratic process has massive implications. It excludes the possibility that political anonymity can receive the deepest kind of constitutional protection. Similarly, the continued use of public voting in New England town meetings and in the Iowa caucuses makes it highly unlikely that any court, conservative or liberal, would ever make secret voting mandatory on First Amendment or any other constitutional grounds. But if the secret ballot is not constitutionally required, then the argument for refusing to disclose the identity of referendum petition signers, to the extent that it is based on an explicit or implicit analogy with the secret ballot, loses at least some of its force. This suggests that the decision to conceal or disclose will eventual fall back on the well-established exception, even in cases of financial contribution disclosure laws, that allows names to be withheld in case a serious possibility of harassment and harm can be shown.68 When serious violence threatens, then normal rules must be suspended, even in a legislative assembly where anonymity is not allowed.69

68 Brown v. Socialist Workers ’74 Campaign Comm (1982) 69 “How can a representative assembly work for good if its members . . . resort to manual violence on the floor of the House, or shoot at one another with rifles?” (Mill, Considerations, CW XVIII, 389-390).

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V I want to end with the briefest of looks at the debate over the Employee Free Choice Act (EFCA), which involves a famously paradoxical discussion of the secret ballot. The paradox derives from the fact that those pressing for the secret ballot are the employer organizations who apparently believe that the secret ballot increases their capacity to “persuade” workers that it is in their interest to refuse to establish unions. The paradox is heightened when we recall Mill’s adage: “The strongest case for the ballot is when the mischievous power of the Few over the Many is increasing.”70 In the current debate, the secret ballot is seen by both workers and management as an effective way for the few to exert power over the many. Exactly why this is so deserves further examination Richard Epstein, for his part, believes that EFCA, which was originally intended to allow workers to form unions without resorting to a secret ballot, involves an unconstitutional infringement of the right of employers to freely speak and freely persuade their employees (whom they can fire) that unions are bad for workers.71 More realistically, Professor Kate Bronfenbrenner who is Director of Labor Relations at the Cornell School of Industrial Relations claims that the entire controversy is bogus because the “secret ballot” is not really secret. By election day, the employer knows who is for and who is against and therefore the secrecy is a charade. This is because consultants can pull workers off the floor and interview them to discover their views. To cite Croly, once again, the secret ballot “has not diminished the personal and partisan allegiance on which the power of the local "Boss" is based.”72 More to the point, because workers cannot be sure who will defect at the last minute, that is, because they cannot be certain which fellow workers have been coopted or pressured to vote against unionization, the secret ballot does not protect the autonomy of workers so much as deprive workers of indispensable knowledge of the percentage of pro-union vote they can expect. Voting in ignorance of how other workers will vote (that is, in ignorance of the momentary balance of pro- and anti-union forces among coworkers), many workers choose the safe path of voting against unionization not to be stigmatized or hung out to dry as pro-union agitators and thus made subject to (illegal but routine) dismissal. This is a good example, in other words, of the epistemological impoverishment that the secret ballot imposes on the lives of others. From a theoretical perspective, the debate of EFCA also helps clarify another important aspect of the secret ballot debate. I am thinking of Bentham’s seemingly uncontroversial yet not widely accepted view that heteronomy is universal in human decision making and that true autonomy is therefore chimerical: “This idea of absolute independence in the voters is absurd.”73 All decision makers, shouting in squares or scribbling in boxes, operate under the influence of social pressures that originate outside their own minds.

70 Mill, Considerations, Chapter 10. 71 Richard Epstein, “The Employee Free Choice Act Is Unconstitutional,” Wall Street Journal (December 19, 2008). 72 Herbert Croly, The Promise of American Life (1911), Chapter 11. 73 Bentham, Political Tactics, Ch. XIV, §2

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As described above, Bentham argues that the secret ballot is beneficial in some circumstances and destructive in others. It is beneficial if it protects the voter from pressure applied by factional interests, and it is harmful if it insulates the voter from pressure applied by the community as a whole. In his words, “The system of secrecy has therefore a useful tendency in those circumstances in which publicity exposes the voter to the influence of a particular interest opposed to the public interest.”74 This is an extremely helpful approach for understanding the debate over the secret ballot in the union context, if we discard Bentham’s empirically dubious concept of the public interest. When two partial interests clash through elections, the secret ballot will sometimes favor one side and sometimes favor the other. It is a biased institution, with a bias that shifts across time and place. Moral arguments about the secret ballot, therefore, may be interesting in themselves, but they do not change the historical reality that the secret ballot is another classic case of special-interest legislation. It is systematically ambivalent in its political effects for this reason, too. You choose it or reject it depending on whose side you’re on.

74 Bentham, Political Tactics, Ch. XIV, §2