Understanding Election Law and Voting Rights by Solimine Michael E. & Smith Bradley A. & Dimino Sr. Michael R

Author:Solimine, Michael E. & Smith, Bradley A. & Dimino, Sr., Michael R. [Solimine, Michael E.]
Language: eng
Format: epub
Publisher: Carolina Academic Press
Published: 2016-09-30T16:00:00+00:00

§8.04 Anonymous Speech

[1] Introduction and Scope

Philosopher John Stuart Mill argued that voting should be done in public. According to Mill, “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.” 44 And in fact, until late in the nineteenth century, voting often was a very public act, de facto if not de jure . You may be familiar with the term “straight ticket” voting, meaning a voter simply votes for all the candidates of a particular party. This term comes from the use of party-printed ballots. Before 1890, when the government began to print most ballots, voters simply wrote down names on a sheet of paper, or even dropped colored marbles into a box. Later, political parties would print up a “ticket” listing all the party's candidates so that a voter could simply deposit the ticket in the ballot box. Because each party would print its tickets on differently colored paper, it was quite easy to see which party's ticket the voter put into the ballot box. Voters could cross names off a ticket and write in other names, so party leaders who wanted to be certain their members stayed loyal (or in some cases that their bribed voters stayed bought) handed out the ticket as close to the ballot box as possible, so that any effort to substitute new names would be apparent. Of course, most Americans today take the right to a secret ballot for granted. Yet the Supreme Court has never held that there is a constitutional right to a secret ballot, and, concurring in Doe v. Reed , Justice Scalia argued that “[t]he history of voting in the United States completely undermines that claim.” 45

At about the same time that the secret ballot was becoming the norm, however, several states and the federal government passed the first “publicity acts,” or what today we would call “disclosure,” requiring the publication of campaign donors. 46 Thus even as Mill's notion that voters should be held responsible for their votes sank into disfavor, the idea that the public has a “right to know” who was financing political campaigns became an accepted part of political discourse. But there remains a long and substantive line of constitutional doctrine that looks on anonymity as a core right and a protection against both private and public incursions on privacy and liberty.

Thus, to frame the question as whether one believes in “disclosure,” or believes in a “right to anonymity” or “right to privacy” does little to advance the debate. The questions are better put as what should be disclosed, and why.

This section discusses general constitutional principles related to privacy and anonymity in political speech. Specific application of these principles to campaign finance disclosure, and the general disclosure requirements of campaign finance law, are discussed in Section 9.07 .

[2] History

During the 1940s and 1950s the Supreme Court guaranteed anonymity to political speakers in a variety of settings.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.