The Constitutionality of Secret Ballots

I was reading today that there had been a legal push to challenge early voting as an unconstitutional violation of “secrecy in voting shall be preserved’ and that the Arizona supreme court.

This set off certain bells in my mind. First, I must make an unstated (in the article I read) assumption that they were speaking of the Arizona constitution because nowhere in the federal constitution is there a mention of any right to secrecy in voting.

As far as I know the first “voting” for candidates that ever took place (excluding ancient Athens that voted in a public square) was sometime in the late 13th century England when the first lower house of parliament was established and candidates for the house were admitted to the second house of parliament that had been established. I’m not even sure how those candidates were chosen because enfranchisement wasn’t established (set at anyway with 40 lbs or an equivalent value in property) for several election cycles afterwards, but it may have been some sort of balloting by vote. It certainly was not secret, once again being done in public. There are some indications that voters at first had to pay (poll tax) to vote. Certainly in the US that required a constitutional amendment to end. But if one reads Trollope’s Palliser novels in the the 18th century most voting occurred in pubs and candidates or their representatives directly paid people to cast their vote for them. Well I don’t think that was ever exactly unfrowned upon in the United States, there are indications that both the Tammany Society and Cincinatti society might have done so in the first national US elections in New York. Tammany survived into the 20th century and still “bought” votes through bribes of patronage (promised future salaries) and other big cities eagerly followed suit, with the “Daley Machine” existing well into my lifetime and didn’t begin its descent until well after the big riot at the Democratic convention in ‘68. And in our own early days, especially in smaller communities, pubs were still the most likely places for voting to occur. As far as I am aware the first semi-secret ballots were in France where ballots had to be marked at designated polling stations. But those ballots were differently colored and easily identifiable as to party. That was in 1831, I believe the first nation to allow that might have been Sweden in 1866 that accepted the Venice Commission on voting that had stated, "Voters are entitled to [secrecy of ballot], but must also respect it themselves, and non-compliance must be punished by disqualifying any ballot paper whose content has been disclosed [...] Violation of the secrecy of the ballot must be punished, just like violations of other aspects of voter freedom." (Code of good practice in electoral matters, art. 5” Sweden set up partitions behind which ballots could be cast of uniform size and color. Britain passed secret voting into law with the Ballot Act of 1872. But as we know it was left to the states to run even national elections and the first state in the US to pass a secret ballot initiative was Massachusetts in 1888. The last being South Carolina in 1950.

But while there is good reason for a secret ballot, it cannot be mandatory. At least in my state those who have difficulty in reading a ballot can be assisted and some polling stations allow assistance for those in wheelchairs that may not have ballot booths low enough for those who can’t stand. When my mother-in-law came to live with us I told her we would go vote. She said she didn’t vote and I told her if she lived in my house the one requirement was she was going to go vote. I don’t know if she could read, I know I had never known her to read. I would even have to read the TV selections to pick what she wanted to watch next (or someone else in the family). So I was allowed to assist. I meticulously avoided telling her whom to vote for and made her make her own selections. Then in 2018 when my own eyesight was becoming diminished a poll worker assisted me.

I had never voted early however, or by mail-in. The constitution does establish a national date for federal elections and I had meticulously always voted on that date. But that does not necessarily mean it is unconstitutional, or at least that I thought it was, because, once again, states can establish the manner for elections in their own states.

Now here is my question, if states can constitutionally create the method of carrying out there state elections in their own states then how can a court even have jurisdiction over the method? They certainly can’t allow votes to be cast after the constitutional voting date, but this whole thing of when votes can be cast must be a state legislative procedure, not a judicial one, shouldn’t it?.

But states cannot, or should not, have any say on who can vote—-both the 14th amendment and the voting rights act establish that they cannot do that. But it is not enough, or apparently not enough. Rather than the recent trend to restrict voting, I think voting should be rejected as a”right to vote” and refrained as “a requirement of citizenship.” I think all eligible should be mandated to vote. I began thinking about this in 2020 when for the first time I couldn’t vote. I entered the hospital before voting day in November of 2020. I had not voted early or requested a mail-in ballot (all registered voters in Nevada now automatically receive one) because I never had. I remained in the hospital until after Thanksgiving. And I began remembering what Lincoln had done during the election of 1864. At first Lincoln wanted all the troops to be allowed to leave to return home to vote. And some were given furloughs. But Grant balked at allowing all the troops to go home. So what they worked out was taking the ballots to the field so they could cast a vote. There was a great deal of consternation that Lincoln, by doing so, had rigged the elections. There were other accusations as well, but all that is mostly largely forgotten. Anyway I began to think we needed mandatory voting. Maybe we need to take ballots to every eligible voter and maybe when one turns 21, sorry 18 now, instead of people needing to registered to vote, they are automatically registered if they are citizens. Then why can’t ballots be taken to citizens at their workplaces or homes? But now we run into secrecy and influencing voters. But I think it could be done, ballots could be pre-mailed to all, and then pre- filled out and then pre-sealed, and then registrars could go and collect ballots and stamp them. Just as mail-in ballots now, the outer envelopes and not the inner envelopes are signed. The outer enveloped could be numbered and the computer could then determine if there are any missing numbers or duplicate numbers. This should be done in advance of the voting deadline. Any citizens whose ballot was not in the computer then would be contacted and a time arranged to pick up the ballot. Now viola! No fraud! Viola! Close to everyone has voted. And then on election day, all of the envelopes are sent into a machine to open the envelopes and pass the ballots to be counted. Viola! Secret voting.

Is that crazy? Is that extreme? Or is that more democratic?

You tell me. But I know who wouldn’t like it. Both of our major political parties. It might possibly encourage more alternative candidates. It might break the monopolies they now have. But I’ll tell you whom I think might like it—the nearly half of Americans who now registered unaffiliated with any party. It might give them a freer opportunity to fill they have to vote for a party that they have already rejected in their registering for neither, especially if no one is registered to any party since they are registered automatically.

Well as I said, those were my thoughts when I could not vote in 2020. Were they just the thoughts of depression from being too ill to vote? Or is there any sense in these suggestions? Could they lead us to greater choice? Those are my

questions to you today.