The Independent View: The Constitutional Right to a Secret Ballot

Thanks to Richard Winger of Ballot Access News for this post.

UPDATE
On April 27, the U.S. Supreme Court refused to hear Citizen Center v Colorado Secretary of State, 14-998, which could have resolved whether the U.S. Constitution protects secrecy in voting.

On Friday, April 24, the U.S. Supreme Court considered whether or not to hear Citizen Center v Colorado Secretary of State, 14-998, over whether the U.S. Constitution protects secrecy in voting. Citizen Center had sued the Secretary of State, and six county election officials, in 2012 because the ballot-counting equipment theoretically could have let election officials see how particular voters voted.

The U.S. District Court said there is no protection for secrecy in the U.S. Constitution. On appeal, the Tenth Circuit said the election officials had mostly fixed the problem so most of the claims in the lawsuit are moot. It is not likely that the U.S. Supreme Court will hear this case, because the election officials declined to file a response to the cert petition, and the U.S. Supreme Court did not then ask them to respond.

Here is how states handle this issue:

Louisville, Kentucky - In 1888 adopted a secret ballot to reduce fraud and intimidation. The city was one of the first jurisdictions in the United States to adopt the secret ballot. The Louisville law also prohibited anyone but voters or candidates from coming within 50 feet of the voting booth and forbade candidates or their agents who came inside the 50-foot zone from persuading, influencing, or intimating a voter as to the voter's selection.

Kentucky - In 1891, Article 147 of the Kentucky Constitution states, "All elections by the people shall be by secret official ballot." Kentucky was one of the first states to adopt the secret ballot, also known as the "Australian ballot" after where it was first used.

32 states did the same by 1892, over the objections of machine politicians. By the turn of the century, most of the country had changed the public spectacle of Election Day into a solemn occasion for curtained isolation.

The growth of mail voting is the most obvious conflict between the principle of a secret ballot and the actual conduct of elections in the United States. Clearly, the voter may use a marked mail ballot as evidence of how they have voted.

This change has been widely debated among policy experts and in legislatures. Mail ballots are a cause for debate because they undermine some of the safeguards of the in-person voting process. Whenever a voting authority accepts a mail ballot, it forgoes the guarantees inherent in the process of in-person voting, including confirming the identity of the voter and assuring that the voter is afforded the anonymity of the voting booth.

The recipient of the blank mail ballot may give it to another person to complete or may fill it out under conditions that subject the voter to pressure. Therefore, early or absentee voting by mail involves some undesirable trade-offs. However, the desire of legislators, and the public, to make voting easier has outweighed their concerns about voter intimidation or the sale of votes. This is another reflection of the continuing evolution, in law and popular understanding, of the standards of voter rights and the secret ballot. None of the states providing for mail ballots has abandoned the secret ballot.

The popular idea of the secret ballot, and the concept appropriate to contemporary conditions in America with a strong established democratic tradition, involves the "sanctity of the voting booth." No one may observe you while you are voting. After you have cast your ballot, hopefully no one can identify that it is yours. That is the essence of the secret ballot.

You, the voter, alone decide whether to discuss how you voted, and what to say about it, if anything.