Each political season brings inevitable election contests, whether at the local, state, or federal level. These challenges often require determining whether illegal votes were cast and, in these instances, election challengers likely need voters to testify for whom they voted. But with ballot secrecy a prominent tenet of American democracy, the question arises whether voters may refuse to disclose their ballots on grounds of a political-vote privilege.
The political-vote privilege protects from compelled disclosure a voter’s selection in a public election. This privilege is well-established in American law, but opinions differ over whether the privilege derives from the common law or from a constitutional basis. Regardless of the privilege’s foundation, the political-vote privilege ensures that a voter’s choice is kept secret, which is considered essential to keeping democratic elections free from coercion, oppression, and retaliation.
Historically, the political-vote privilege was recognized under American common law and by the U.S. House of Representatives in the years immediately following adoption of the United States Constitution. Courts and commentators agree that the political-vote privilege was first recognized in the 1795 South Carolina decision Johnston v. Corporation of Charleston, 1 S.C.L. (1 Bay) 441 (S.C. Ct. Com. Pl. & Gen. Sess. Jan. 1795), available at 1795 WL 376. In this election-contest case over the city warden position, the court refused to compel voters to reveal the candidate for whom they voted.
This refusal to compel voters to reveal the substance of their ballots gradually became the rule in several states. For example, five years later, in 1800, the Pennsylvania Supreme Court declared that the criminal charge of election-influencing may not depend on proving how an individual voted, for “no citizen is compellable to declare how he has given his suffrage.” Respublica v. Ray, 3 Yeates 65 (Pa. 1800), available at 1800 WL 2544, at *2.
The U.S. House of Representatives Committee on Elections recognized the political-vote privilege in 1817. Chester H. Rowell, A Historical and Legal Digest of all the Contested Election Cases in the House of Representatives of the United States from the First to the Fifty-Sixth Congress, 1789–1901, at 68–69 (GPO 1901). This committee was charged with deciding an election dispute between Rufus Easton and John Scott for the nonvoting delegate seat for the MissouriTerritory. Easton, the incumbent, lost the election to Scott by fifteen votes and petitioned the U.S. House of Representatives to unseat Scott on the ground of illegal voting. During its review of voter qualifications, the committee determined that it could not compel voters to disclose for whom they voted because of a right to ballot secrecy. The House ultimately vacated the seat and ordered a new election.
The political-vote privilege developed further with several influential state-court decisions in the mid 1800s. In 1863, the N.Y. Court of Appeals, in People v. Pease, 27 N.Y. 45 (1863), declared that it could not require voters to disclose their ballots. And in the 1868 election contest for Wayne County Sheriff, the Michigan Supreme Court, in People v. Cicott, 16 Mich. 283 (1868), agreed, stating that it could not compel a qualified voter to disclose how he voted. Other states similarly adopted this privilege. See Williams v. Stein, 38 Ind. 89 (1871); State v. Hilmantel, 23 Wis. 422 (1868); State v. Olin, 23 Wis. 309 (1868).
An exception to the political-vote privilege developed, however, regarding legally unqualified voters, to whom the privilege was not applied. McDaniel’s Case, 3 Penn. L. J. 310 (Ct. Quarter Sess., Philadelphia 1844). A voter may also waive the privilege when he voluntarily consents to disclose the substance of his vote. Martin v. Wood, 4 N.Y. S. 208, 209 (Sup. Ct. 1888).
The political-vote privilege has received relatively little attention under federal common law. Although the U.S. Constitution does not specifically guarantee voting secrecy, Anderson v. Mills, 664 F.2d 600, 608 (6th Cir. 1981); Smith v. Dunn, 381 F. Supp. 822, 825 (M.D. Tenn. 1974), many courts have recognized that voting secrecy is a fundamental tenet of American democracy. United States v. Executive Comm. of the Democratic Party of Greene County, Ala., 254 F. Supp. 543, 546 (N.D. Ala. 1966). But no federal court has expressly recognized a political-vote privilege on federal constitutional grounds.
In 1975, the U.S. Supreme Court included a political-vote privilege as part of its proposed evidence rules, see 56 F.R.D. 183, 249 (1972), but Congress rejected all of the proposed privileges in favor of a general privilege rule permitting the development of privileges under common law. Since this rejection, only a few federal courts have recognized a political-vote privilege under common law. See, e.g., In re Dinnan, 661 F.2d 426, 431–32 (5th Cir. 1981); D’Aurizio v. Borough of Palisades Park, 899 F. Supp. 1352 (D.N.J. 1995).
In 1974, the National Conference on Uniform State Laws (NCUSL) published its second edition of the Uniform Rules of Evidence, which largely followed the proposed Federal Rules of Evidence. These uniform rules included a political-vote privilege that was identical to the proposed federal privilege, and read as follows:
(a) General Rule of Privilege. An individual has a privilege to refuse to disclose the tenor of the individual’s vote at a political election conducted by secret ballot.
(b) Exceptions. The privilege under subdivision (a) does not apply if the court finds that the vote was cast illegally or determines that disclosure should be compelled pursuant to the election laws of the State.
A large majority of states have adopted the evidentiary privileges contained in either the Uniform Rules or the proposed Federal Rules, and some have included the political-vote privilege, while others have not. In other states, the privilege has common-law or state constitutional support, while other states remain silent on the issue.
So, where does your state fall? The red-state/blue-state map in this post identifies the states that have adopted the political-vote privilege promulgated by the NCUSL, and those where the privilege has at least some common-law support.
In sum, whether by rule or common law, the political-vote privilege protects from compelled disclosure a legal voter’s selection in a public election. The privilege does not apply where it is proven that the voter illegally cast a ballot. The illegal voter may assert his Fifth Amendment privilege against self-incrimination to avoid revealing his vote, but the political-vote privilege will offer no protection.