Secret ballot vs vote by mail

Question

According to wikipedia, "The secret ballot is a voting method in which a voter's choices in an election or a referendum are anonymous, forestalling attempts to influence the voter by intimidation and potential vote buying." The idea is that to be counted, a vote must be made in a way that no one except the voter can see whom the voter has chosen. Thus, persons who could try to pressure the voter to choose one specific candidate have no way to be sure that their pressions have been effective, nor has the voter any way to guarantee to people other than himself that he has voted for a specific candidate.

Wikipedia mentions that in the US, the importance of secret ballot was realized progressively near the end of 19th century and that ways of voting compatible with this principle were adopted everywhere (with North Carolina the last state to adopt it, in 1950, long after Georgia, the second last, in 1922).

However, nowadays, most states allow mail votes, which is not a secret ballot and offers no guarantees that the voter is not subject to intimidation or threat. My question is

When mail votes where introduced in the US, and when they became a significant part of the total votes, were there people arguing against this in the name of secret ballots? And if so, what were the counter-arguments offered by the partisans of vote by mail? Where can I find summaries of those debates?

Answer 1

Vote by mail does not preclude secret ballots

I am a resident of Oregon, which was the first state to move to an entirely vote-by-mail system following the passage of Ballot Measure 60 in 1998.

A good vote-by-mail process can preserve a secret ballot. In practice, Oregon's process does a reasonable job of this. Unfortunately, the codified process does not enforce this, and a few modifications would make the preservation of secrecy much stronger.

For reference, here is Oregon's official Vote by Mail Procedures Manual.

Here's the short version:

• Ballots are submitted in two envelopes:

  • The outer envelope is the Return Identification Envelope. This includes the name and address of the voter, and a signature promising that the sender is who they say they are.
  • The inner envelope is the Privacy Envelope. This is unmarked.

• Ballots may be submitted directly to secure voting dropsites, of which there are many, circumventing the postal service.

• Ballots are batch processed in three phases:

  1. The opening board: (a) checks the signature on the return envelope against the signature on file for that voter, (b) removes the return envelope, and (c) removes the secrecy envelope.
  2. The inspection board sorts ballots into those that can be machine counted and those that can't. They fix non-machine-countable ballots where intent is clear.
  3. The ballots are counted.

Every step of the process may be observed/overseen by any member of the public that agrees to follow some obvious rules.

Each of the three steps at the opening board are done in batches of ~200 ballots at a time (source), which provides a reasonable amount of secrecy. That is, 200 return envelopes are removed, then the secrecy envelopes are removed from those 200 ballots. This means that nobody sees a ballot with its return envelope at the same time, and batches of 200 preserve reasonable anonymity.

Unfortunately, the batch size is not codified in the official process. More fundamentally, secrecy would be much stronger if 1(b) and 1(c) occurred in batches at different stations, so that no one person sees both the ballot and its return envelope.

Hopefully this makes it clear that ballot secrecy and vote-by-mail are not fundamentally opposed, as the question implies. Rather, ballot secrecy can be preserved by a good vote-by-mail process.

To more directly answer your question, however, yes, people make arguments against vote-by-mail on the basis of privacy (and also voter fraud). Unfortunately, I can't track down a copy of the official "Against" arguments for Oregon's ballot Measure 60, but political activist Bill Sizemore was and is one of the vocal opponents. You can read his thoughts on vote by mail here.

In general, however, the vote-by-mail system is quite popular in Oregon across the political spectrum, and Oregon has consistently high voter turnout relative to the national average, which is usually attributed to the vote by mail. In practice, I believe our process preserves a reasonable amount of secrecy. With the minor changes I suggest above, I think it would preserve it to at least the degree of most in-person voting systems.

Answer 2

This is about the situation in germany.

(Risks of) mail voting are discussed every once in a while. The general line of the constitutional court is that it should stay an exception because of the known risks - but that it is also necessary to allow people to vote who cannot come in person to voting station on election Sunday.
By now this exception has reached a magnitude of almost 1/3 of the votes.

The risks/disadvantages that are routinely discussed are not only possible breach of secrecy, but also lack of publicity/transparency and the corresponding further manipulation risks (particularly related to destruction of votes while they are on their way/stored until election day) and also that equality and a votes trickling in over weeks do not go well together.

The important advantage of mail voting is that it helps making the election general by allowing people to vote who are unable to go and vote in person.

In the end, a compromise between such conflicting principles must be found.

OTOH, there are also approaches that try to reduce the need for mail voting and provide a more in-person like procedure. E.g. special mobile election stations that go to hospitals or nursing homes so people can really nearby.

(Note that a similar compromise is in §57 BWO [federal election regulations] that specifies persons who cannot read or have a disability that prevents them from performing the voting procedure can have a helper do what they cannot do themselves - here also secrecy and risk of manipulation vs. possibility to vote are traded off.
But again, if possible tools that enable the voter to vote secretly are preferred, e.g. stencils for visually impaired or blind voters)

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Some background:

• Art. 38 Grundgesetz [German constitution]:

    (1) Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders or instructions and responsible only to their conscience.

  (this is about the federal parliament, but laws for other elections follow the same principles)

• In addition, elections are public, i.e. the whole election procedure is transparent.
  On election Sunday, anyone can go and audit if they wish the whole election from the opening procedure when the urn is shown to be empty and then sealed, throughout the whole voting hours and throughout the counting process which takes place immediately after closing the voting station. (When the counting is done, the ballots are sealed and archived for a specified time in case recounting becomes necessary). Later on, the auditor can check whether the published results for this district (= station) equal what they saw.

• Wikipedia on mail voting in Germany

• The mail voting procedure is similar to what @walkie describes for Oregon:

  1. every voter is notified of the upcoming election. This is automatic in Germany since we every resident anyways needs to register themselves. The notification contains a form to request mail voting.
  2. With that form, one gets the documents: the ballot, a form to declare that the voting was done freely and secretly and two envelopes. Inner envelope to take the filled in ballot, outer envelope to take the declaration and the inner envelope.
     The actual voting can either take place in an election cabin e.g. at the town hall where the outer envelope can be put into the mail voting urn, or at home and the outer envelope is then sent by post to the town hall. Very roughly, both ways are used about equally often.
  3. Counting takes place on election day. Outer envelopes are opened and declarations are checked (complainant below argues that the checking does not compare the signature, and the document does not have any tamper-proof features). Inner envelopes are sorted according to correct outer document but still kept intact.
     Afterwards, inner envelopes are opened and votes counted.

• Mail voting has been possible since 1957. In order to do so, an absentee voter had to give an important reason on the request form for the mail voting documents. This requirement was dropped in 2008.

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After the 2009 EP elections, a complaint was raised about this change which includes a detailed discussion of concerns related to vulnerabilities of mail voting BtDrucks 17/2200, p. 61ff.

The complaint was rejected by the federal parliament (noting that they are not to judge constitutional compliance) and it went to the constitutional court.

In 2013 the Bundesverfassungsgericht (federal constitutional court) decided in a decision on a complaint about the election for the European Parliament 2009 that mail voting without requiring a reason is constitutional
BVerfG, Beschluss des Zweiten Senats vom 09. Juli 2013 - 2 BvC 7/10 -, Rn. 1-17
Abstract in English

• The complainant argued that mail voting is critical in terms of secrecy and transparancy (publicity) and that previous arguements of the constitutional court emphasized that mail voting should be an exception.

• The federal ministry of the interior argued that not requiring a reason does not change anything because the reasons could anyways not be checked since there were too many such requests already before the change. The fraction of votes done by mail would not matter, however: mail voting stays an exception since it still requires a request to be posted. And in any case, earlier experience from Landtagswahlen (≈ state parliament elections) did not show an increase in mail votes that would cause concern.

• The court said that concerns about secrecy and transparency are valid

  Public control of balloting is reduced in the case of postal voting. Nor is the integrity of elections guaranteed to the same degree as in ballot box voting in a polling station.

• but the concern that elections without mail voting are less general is valid as well

   Granting a postal vote, however, serves the purpose of achieving a voter turnout which is as high as possible, hence doing justice to the principle of general elections.

• These principles are thus in a conflict,

   The principle of general elections – at least in connection with the postal vote – constitutes a fundamental constitutional decision that runs counter to the principles of free, secret and public elections. This decision can, in principle, justify restrictions of other fundamental decisions taken in the Constitution.

• and legislation must find a viable compromise that does not disproportionally hinder or disable any of the general election principles:

  It is primarily up to the legislator to suitably bring the colliding fundamental decisions into balance when organising the right to vote. It must, however, ensure that none of the electoral principles is disproportionately restricted or might become considerably less effective.

• They rule that mail voting on request without requiring an important reason is within the range of constitutional solutions

   Waiving this requirement is based on comprehensible considerations, and is still within the margin to which the legislator is constitutionally entitled.

• They also followed the BMI's arguement that a constitutionally relevant increase in mail votes is not expected:

   The legislator also considered that a marked increase in the number of postal voters could conflict with the constitutional idea of personal balloting. Drawing in particular on experience from Landtag (state parliament) elections, the legislator for the Bundestag elections argued that one need not fear that waiving the obligation to make plausible one’s reasons for applying would lead to a considerable increase in postal voting. There are no indications that this assessment is incorrect in a constitutionally relevant manner, or that it might not be transferable to elections to the European Parliament.

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However, mail voting is not what I'd call a small fraction of the votes (and it was already then more than 1/6 of the votes):

(fraction of mail votes in German federal election, source: federal central for political education)

In other words, one out of 3 - 4 votes was cast by mail in the last federal election.

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Various more recent news posts mentioning or discussing issues with mail voting or suggest improvements (also to in-person voting to reduce the fraction of mail votes)

• This news post from 2019 quotes the federal election supervisor's being happy about the high voter turnout that can be achieved with mail voting but also his concerns that mail voting may violate secrecy (see the arguments of the complainant above) and equality (since the vote takes place over a longer period of time and meanwhile political events can influence voters).

  This is also stated in a longer post from the Tagesschau "Risks of mail voting" who report/remind of two cases of election fraud with mail votes in 2014 and 2016.

• Here's another post from 2017 quoting a previous president of the federal constitutional court's concerns about manipulation risks with mail voting who suggests that in-person voting should be made more flexible.

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Answer 3

An in person secret ballot itself is not a guarantee against intimidation, threat, or bribery, it just reduces the odds somewhat. There are other ways. Examples:

• In person voters unlikely to favor a powerful criminal's favorite candidate might be bribed, intimidated, coerced, or even restrained to not vote at all, or harried and delayed so aggressively as to make it less likely for them to vote, or the criminals may scheme to find ways of introducing bottlenecks and obstacles to thus reduce the number of voters in an unfavorable district.

• An in person voter might be rewarded, flattered, seduced, intimidated, or threatened to the point of brainwashing, as with a cult, so that they've no will of their own or are too paranoid or starstruck to not vote as ordered.

• In person voters might be misinformed and disinformed by malevolent propagandists, but encounter no credibly opposing truthful views to correct their misunderstandings because the credible opposition has itself been expunged by bribery, threat, and intimidation, which for mass media might take the form of economic threat and intimidation, or lobbying to make these criminal methods legal or insufficiently punitive, or litigating meritless but time-consuming obstacles.

• In person voters might be bribed or coerced en masse: for example, on the eve of an election a factory owner might openly announce plans to close a plant if the "wrong" candidate is elected, or give bonuses to all if the "right" candidate wins. While such methods might not control individual voters, those might have a very significant statistical effect.

• In person voters might be kept over-occupied by public spectacles, festivals and treats, (e.g. open bar at the free ox roast), by which a sponsor can monopolize their time and make them more agreeable to the sponsor's intent.

Voting by mail, whatever its intrinsic vulnerability to bribery or coercion may be, is clearly less vulnerable to some of the above exploits, (particularly bottlenecks on voting day, unless the exceptional case of a corrupt postmaster occurs...), therefore when comparing voting by mail to voting in person, we should weigh not just the dangers of each, but also their relative benefits.

Answer 4

When mail votes where introduced in the US...

Absentee ballots [a subset of vote by mail] were first used for the military during the American Civil War Link Link

and when they became a significant part of the total votes,

timing is not germane to the question of sanctity of secret ballots

were there people arguing against this in the name of secret ballots?

possibly, however no one to my knowledge has discovered any transcripts or video addressing the secrecy of these ballots.

That answers you posted question. However your question supposes that in-person voting is inherently free of secrecy issues. This is an myth that can be dispelled simply by recitation of US Federal Law:

Federal law dictates that during federal elections, all polling places have to be accessible to disabled voters or else provide some alternative way to cast a ballot. The law also says that voters with disabilities and voters with limits on their English skills can get help voting from a person of their choosing.
That means if a voter has trouble reading, or English is a second language for them, they can bring someone to help them vote — as long as that person is not the voter's employer or associated with a labor union the voter might belong to. Link ADA Link HAVA Act