Date Posted: August 2009
The way a group, jurisdiction, or nation votes, and makes decisions binding on their members and citizens, is fundamental and deceptively prosaic. Why do some groups (faculties, Congress, caucuses, HOAs) take public votes in most contexts, accompanied by debate, sometimes heated? Why do others (electorates, labor unions) take private votes (often by ballot cast in a secure setting where “heated debate” is not allowed) in most contexts? Moreover, what should we make of the exceptions to these general forms?
This Article will demonstrate that the hybrid mode of voting – non-debated yet non-secret voting such as in contemporary absentee balloting, in union organizing petitions (so called “card check” campaigns) as well as among corporate shareholders – carries with it the weaknesses of each system without the strengths. Accordingly, where possible the situations that use this hybrid should be reformed to adopt the open or secret modes.
For absentee voting in elections, jurisdictions should provide early voting in controlled locations where the protection against coercion and fraud are possible. In the labor organizing context, the choice of a bare majority through card check must not determine whether the workplace is organized. Instead, it should provide the first step to an organizing election (as a petition places an issue on the ballot). Legitimate grievances about the fairness of union organizing elections, and whether employers are engaging in unfair labor practices, offer no justification for discarding the protection from fraud and coercion secured through a secret ballot. Voting by shareholders can also be non-debated and non-secret, but the diverse characteristics of large and small shareholders counsel for transparency when large institutional investors are engaged in contested corporate voting.