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Specifically with regard to the secrecy of a voter's own ballot, is that a voter's privilege or does a voter have an obligation to keep his ballot secret?

The various states have provided mechanisms for a voter to maintain the secrecy of their ballot whether by voting in person or by mail. If a voter chooses to not employ those mechanisms, can the voter be penalized?

This issue is central to the recent Pennsylvania Supreme Court Ruling that if a voter chooses to not use the security envelope, but instead places their "naked" ballot in the provided mailing (outer) envelope, that voter will forfeit his vote(s). It can only be speculated if the voter intentionally or innocently neglected to use the security envelope, but in 2016 approximately 6% of PA Philadelphia voters submitted ballots in this way.

Some election officials have estimated that as many as 100,000 Pennsylvania ballots will be voided on this basis (the naked ballot basis).

I can not conceive of how a voter should be sanctioned if they were to show their ballot, for example, to their wife, children, even the next-door-neighbor. That would seem to be that voter's right and privilege.

On the other hand, sanctioning a voter for not exercising their privilege, gives the appearance of voter suppression.

EDITED TO ADD: As it relates to the obligation of a voter to protect their own voting choices this link addresses Ballot Selfies, wherein the voter not only takes a picture of their own ballot but publishes it! National Conference of Legislatures

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  • Comments are not for extended discussion; this conversation has been moved to chat. – CDJB Oct 8 '20 at 19:23
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At least for those systems inheriting from British tradition and the Ballot Act 1872 the secret ballot was introduced a fraud mitigation exercise to protect against personal bribery & intimidation as the franchise was extended to more people, who were likely to be in debt or positions of weakness to landlords or employers. Note in particular that the British system is still not structurally secret, in that ballots are numbered and (paper) records exist for who they are issued to.

To turn your rhetoric around, could you understand why it might be a bad idea to allow people to prove their vote to their boss, or for children to be able to show their parents they voted the "correct" way?

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    So what is the answer to the OP's question? 1. Is it a privilege or an obligation in the USA? 2. If a voter chooses to not employ those mechanisms, can the voter be penalized? You don't seem to have addressed that. The question wasn't why one rule might make sense over the other. – JBentley Oct 8 '20 at 8:26
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    This answer addresses the British voting system but the question is asking about the United States. – TylerH Oct 8 '20 at 13:51
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    @TylerH: The US is one of "those systems inheriting from British tradition". Or what did you think that "Common Law" is? – Ben Voigt Oct 9 '20 at 21:06
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    @TylerH: A reference to currently effective US law would be required for an answer on law.stackexchange.com concerning a question about the US. But this is politics.stackexchange.com, and one certainly can look to the British common law to understand the purpose and ethical tradeoffs involved. – Ben Voigt Oct 9 '20 at 21:14
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    @TylerH I think the answer assumes an elementary level of extrapolation. i.e. If this is why the law was introduced, then the implied answer is that it is perfectly acceptable for someone to choose to share their ballot with others as they see fit, but they're protected under the law from having to. Or to say it succinctly; it's the voter's privilege. The obligation described in the PA case is to follow the instructions on the mail in ballot and perform the act of voting as outlined by state procedures. NJ also requires the envelope for a vote to count, and their's requires a signature. – TCooper Oct 9 '20 at 23:00
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Both.

Ballot secrecy is a voters' privilege that prevents others from threatening harm for failing to vote a certain way. No one can know how they voted for sure so they cannot do them harm based on how they voted.

Ballot secrecy is a voters' obligation that prevents them from profiting directly by their vote. No one can know how they voted for sure so anyone paying for their vote must rely on their honesty rather than any evidence, which strongly reduces the value of the purchase.

Of course, ballot secrecy laws and election procedures are no perfect solution to either of these issues.

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    That's for sure. I understand the argument for making them secret, but one has to look at the disadvantages on the other side as well. Which does more harm: accepting that some votes may have been seen by postal workers, or discarding the votes of a hundred thousand people who may have had no plausible alternative to voting by mail, and who possibly may disproportionately be from marginalized groups? – Obie 2.0 Oct 7 '20 at 0:29
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    Note also that New Hampshire's law against sharing photos of ballots was ruled unconstitutional in 2015. Moreover, the laws in many of the states that still have them are classic "punish the victim" statutes that would penalize the voter for revealing their ballot, like those relating to drug use or prostitution often are, and it is unclear whether laws relating to solicitation or conspiracy to commit a crime would cover most or all methods of getting people to show their ballots. – Obie 2.0 Oct 7 '20 at 0:39
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    @Obie2.0 that is a different question. if the existing situation makes it difficult for people to vote, there must be adopted mechanisms for them to vote easier, without compromising voting secrecy. more voting booths spread out in more districts, or whatever is needed. – Gnudiff Oct 7 '20 at 9:33
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    @Obie2.0 Then ask a new question?? None of those things relate directly to ballot secrecy. I think it's total crap a bunch of ballots are thrown out for lame reasons. I think it's worse crap that there aren't better voting alternatives, that there isn't an election holiday, that mail-in voting isn't protected constitutionally nationwide. Doesn't change my answer here. If you want a political argument then I don't think SE is a great venue. – Bryan Krause Oct 8 '20 at 6:21
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    @Obie2.0: The problem with the possibility that postal workers may have seen the ballots is that a postal worker who sees the ballot may choose to "lose" or delay some ballots depending on who they are voting for. A postal worker may "lose" votes for Trump and thus support Biden. Since you cannot be certain what may have been done with the visible votes, the safest thing is to dispose of them all. It is, of course, illegal for a postal worker to intentionally delay or lose mail but somebody somewhere may consider the risk of a lost job (and prosecution and/or jail) worthwhile. – JRE Oct 8 '20 at 14:14
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Secrecy cannot be both a privilege and a choice.

If secrecy is not available, then it is obvious that retaliation based on the actual votes could take place.

If secrecy is optional, then retaliation can take place for choosing to exercise secrecy.

Only when secrecy is universal does it actually protect against coercion.

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    I disagree with their argument, but they are talking about revealing the actual ballot, not telling someone who you voted for. The argument is that a ballot represents proof, whereas an affirmation does not. I find this dubious, but that is the argument. – Obie 2.0 Oct 7 '20 at 0:46
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    @agc, if secrecy is optional, the malicious actor will just ask to see your actual ballot to prove you voted what they want, and beat you up if you don't provide it. If secrecy is mandatory, they can't do that, since you can't show your actual ballot. – ilkkachu Oct 7 '20 at 11:48
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    @BobE: I did not say that a generic something cannot be both a privilege and a choice. I said that secrecy specifically cannot. The peculiarity of secrecy in particular is illustrated by the very common "You're hiding something therefore you must be guilty" proposition. And yes, absolutely if you are showing your ballot to your boss as you seal and mail it, you are selling your vote and compromising the integrity of the election, and your vote ought not to be counted because of the element of coercion (even if it is the same vote you would have cast without outside influence) – Ben Voigt Oct 7 '20 at 15:50
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    @BobE: What's wrong is that it conceals coercion making it undetectable. And putting all voters at risk of harm, not just the voter who wants to share his ballot. A voter under threat has to be able to say, as ikkachu commented "I can't give you the evidence you are asking for.". "I choose not to" is not strong enough. – Ben Voigt Oct 7 '20 at 17:05
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    @BobE: Unfortunately, it's hard to write a law that would make changing your opinion of someone based on how they voted illegal. And that's all it takes to create pressure for people to vote the way their boss / parent / spouse / priest / drug dealer / pimp / etc. wants them to vote, thus skewing the vote in favor of people with authority over others. The best we can (try to) do is make it hard to confirm that someone actually voted as they say they did, so that people who feel pressurized to vote for X can safely decide "screw it, I'll just vote for Y but tell everyone I voted for X". – Ilmari Karonen Oct 8 '20 at 10:34
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I'm not going to get into the philosophical arguments, but I'm going to point out the relevant statutes.

Section 1306 of Pennsylvania's Election Code sets out the procedure required for an absentee ballot to count:

Except as provided in paragraphs (2) and (3), at any time after receiving an official absentee ballot, but on or before eight o'clock P.M. the day of the primary or election, the elector shall, in secret, proceed to mark the ballot only in black lead pencil, indelible pencil or blue, black or blue-black ink, in fountain pen or ball point pen, and then fold the ballot, enclose and securely seal the same in the envelope on which is printed, stamped or endorsed "Official Election Ballot." This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector's county board of election and the local election district of the elector. The elector shall then fill out, date and sign the declaration printed on such envelope. Such envelope shall then be securely sealed and the elector shall send same by mail, postage prepaid, except where franked, or deliver it in person to said county board of election.

There is further intent in the Code that, if secrecy of a ballot cannot be maintained at the count, it cannot be counted. Specifically, section 1306.1(g)(4)(ii):

If any of the envelopes on which are printed, stamped or endorsed the words "Official Election Ballot" contain any text, mark or symbol which reveals the identity of the elector, the elector's political affiliation or the elector's candidate preference, the envelopes and the ballots contained therein shall be set aside and declared void.

It's clear from the above that the intention of this section of the Code is that a vote cannot count if the voter chooses to identify himself with his ballot.

This law doesn't proclude a voter from shouting from his rooftop at the top of his voice how he voted if he wanted (though other laws may prevent him from doing so at two in the morning). However, if the process set out in law for these ballots is made clear to the voter, and despite this are not followed, then this section of statute indicates that they cannot count.

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    @BobE, you can tell all you like about what you voted. But no-one can verify you did what you said. The part where compulsory ballot secrecy prevents vote selling or coerced voting, is that if the voter can't show the actual ballot to prove what they voted, it's much harder for the malicious party to verify they got what they paid for. It's not much use bribing someone for their vote, if they can still vote the other way and take your money anyway. With mailed ballots, it's likely to be much harder to enforce at all points of the chain, but that should be the general idea. – ilkkachu Oct 7 '20 at 11:46
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    @BobE When you vote in person, there's no an easy way for the poll workers to invalidate your ballot on the basis of who you said you voted for. On the other hand, with absentee votes, if the secrecy envelopes were not used, it would be easier for someone along the line (anyone from a poll worker to a postal worker to someone illegally rummaging through mailboxes) to selectively "lose" ballots that happened not to support their preferred candidate. – reirab Oct 7 '20 at 17:33
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    @BobE - The main deterrent in that case would be how easy it would be to detect that sort of wholesale fraud. Having 0% of the ballots in an area returned should set off alarm bells at the election commissioner's office. Plus, such a mechanism doesn't have to protect against every possible scenario. It was designed to protect against specific threat vectors. Whether additional threats need to be considered is a separate question. – bta Oct 7 '20 at 20:34
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    The law also does not prevent someone from voting one way and shouting that he voted another way. – Joshua Oct 8 '20 at 19:47
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    @MikeVonn, the question (above) is predicated on the voter divulging his own ballot choices, the statue you cited is predicated on a person "who was in a polling place for any purpose other than voting ". This statue does not seem to apply, and was perhaps intended to criminalize behavior of poll workers, election officials etc. It actually doesn't even apply to the other voters who are in the polling place for the purpose of voting. – BobE Oct 9 '20 at 15:24
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For what it's worth, the obligation of the voter to keep his ballot secret is part of the reason why cameras are prohibited in polling stations.

Part of the reason for that prohibition is to protect other voter's privacy, but another reason is to protect the secrecy of the voter's ballot. As other's have mentioned, if a voter can prove how he/she voted then it's possible to show that proof to a parent, a boss, or some illicit actor offering cash for votes.

I've worked as an election judge and in other roles on election day. Once, when a voter refused to put his cell phone away (he'd been taking pictures), I was able to get a sheriff's deputy to convince him (and to convince him to erase the pictures he had taken).

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  • It makes perfect sense (to me) that camera's are not permitted so as to protect other's privacy. However, is a voter prohibited from showing his wife/boss his ballot just as the voter is putting the ballot in the mail? If the concern is taking a picture of the ballot, is the voter prohibited from taking a picture at home? There's something missing in this logic> – BobE Oct 7 '20 at 4:16
  • Since you have actually worked as an election judge, let me pose a question that may have application in your jurisdiction. In our jurisdiction, for in-person voting each elector, after properly being checked in is given a ballot that is in a blank sleeve. The elector is instructed to proceed to the privacy booth, remove the ballot, mark the ballot, replace the ballot into the blank sleeve and then proceed to the ballot scanner. At the ballot scanner, remove the ballot and insert the ballot into the scanner. (Continue) – BobE Oct 7 '20 at 4:24
  • (continued) If the voter does not use the blank sleeve between the privacy booth and the scanner. Does his ballot become invalidated? If he has already placed the ballot in the scanner and it's been scanned, what do you are the judge of elections do about that? I ask, because I'd really like to know, what the corrective measure is if the voter does this quite innocently. – BobE Oct 7 '20 at 4:27
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    I'm in Texas. In person voting is not nearly as complicated as that. In Dallas county (where I live), voting is done on a touch-screen machine. The result is a printed ballot. That ballot includes a print-out of all the voter's choices and a set of bar codes (I think, the only time I was exposed to it was in the primary election this year when this system was introduced). The voter then takes the printed ballot and inserts it into another machine that reads the ballot and stores it for audit purposes. My role as judge is to enforce the law - the law says no cameras – Flydog57 Oct 7 '20 at 13:54
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    I understand, BTW you may be interested in the following: essvote.com/blog/video/video-how-are-ballots-counted it appears to explain that the "counting" is actually done on the second machine. As it relates to the law, it's interesting how different states deal with recording devices in the polling stations. HAGD – BobE Oct 7 '20 at 14:19
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The question implies ballot secrecy must be one or both of two things. To the contrary, in a Democracy it is neither of those things.

  • Ballot secrecy is not a voter's privilege: in a Democracy voting is a public right or power, it's not some kind of private advantage granted by a superior's fiat. (In a Monarchy, the power to vote might well be a privilege.)
  • Ballot secrecy is not a voter's obligation: that would imply or require some sort of oath of secrecy.

Ballot secrecy is more a matter of voter discretion and safety, rather like the secrecy provided by wearing clothing. Sometimes it is safest to remain clothed, but there are times and places where safety being granted, other necessities take priority.

For example political party candidates are by this analogy veritable nudists, since it's generally known exactly who they'll be voting for. People responding to polls divest themselves of some secrecy. And people who promote their own political views also choose to do without some secrecy. Politicians who create zoning to favor a political party (gerrymandering) are in effect divesting that region's citizens of most of their collective ballot secrecy.


As far as the mail-in voting systems go, that's a not a matter of secrecy so so much as protocol, format, and most likely poorly designed ergonomics. The original purpose of an envelope within an envelope is to protect that voter's and kindred voters' ballots from wholesale interception. US history proves that there's never a shortage of organized political partisans who will do most any evil thing with ballots they can possibly get away with -- that second envelope greatly reduces the number of, and the probability of, possible ballot-related crimes.

Alas with gerrymandering ruling the land, the approximate aggregate contents of a voting zone's ballots can usually be predicted with confidence, and over-literal courts plus the lack of an inner envelope, can be exploited in tandem by partisans to achieve by legalistic means, (namely by misprioritizing the secondary good of secrecy over the primary good of franchise**), the same outcomes as those crimes the inner envelopes were designed to prevent.


**that is, the purpose of secrecy is and should be to preserve ballot integrity, but secrecy is not absolutely necessary. The first 22 or so US Presidents were elected without secret ballots. Generalizing: whenever a feature intended to further improve something already good proves helpful, it should be kept -- but when the feature fails, and makes the good thing worse, the failing feature should be sacrificed, not the initial good itself.

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  • in you first bullet you seem to confound the right to vote with the secrecy of a voter's choices. I don't doubt that a voter has a right to expect that his voting choices will be held secret by others, however, as discussed here: ncsl.org/research/elections-and-campaigns/…, it would appear that voters are increasingly given the right to publish their (own) voting choices. – BobE Oct 7 '20 at 14:36
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    This answer suggests that the purpose of secret ballots is to prevent interference by election officials. This is very misleading, because the purpose of secret ballots is to prevent bribery and/or intimidation of voters. – Matthew Oct 8 '20 at 10:12
  • Perhaps the term "obligation" isn't the best, but I think the point is to ask whether voters should be able to prove how they voted in any precinct where votes were not unanimous (if Fred Jones and 473 other people voted in a precinct, and all 474 ballots were cast for Rufus T. Firefly, that would pretty well prove that Fred Jones voted for Rufus T. Firefly). Voters wouldn't be so much "obligated" to keep their votes private as be unable to prove them to anyone else. – supercat Oct 8 '20 at 19:14

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