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Evolving Meaning of the Secret Ballot

Evolving Meaning of the Secret Ballot

VoiceVote preserves and strengthens the secret ballot in a way that qualitatively enhances the role of voters and the public in securing the electoral system and strengthening public confidence in the system's integrity. It does this by creating and giving to each voter an anonymous, cryptographically certified record of the ballot they have cast. It also focuses a powerful light on the entire election process by publishing all ballots on the Internet.

Until now, voters have been denied a receipt recording how their ballot was cast in all in-person voting. This denial has sometimes been considered an essential aspect of the secret ballot. The rationale has been that a receipt could become a vehicle for vote buying or coercion. Douglas W. Jones summarizes the standard argument this way:
We must protect voters from outsiders who might try to punish those who vote "the wrong way" or reward those who vote "the right way". To protect voters from punishment, we must assure the voter that his vote is secret. To protect the public from voters willing to sell their votes, we must be assured that even the voters themselves cannot prove how they voted in order to claim a reward.
This definition reflects the discussion of voting principles at the time the secret ballot was adopted more than 100 years ago and reflects the origins of the Australian Ballot in English law with the adoption of the Ballot Act of 1872 and other related legislation. However, it does not accord with either the popular conception of the secret ballot or with the actual current conduct of elections in the United States. In particular, today many people would not accept the notion that they must be denied a record of how they have voted "to protect the public." The public interest and voters' rights are congruent. A survey of voters shows that they much prefer a paper trail that they can keep to verifying a paper trail in the polling place.

rapid growth of mail voting is the most obvious conflict between the principle "that even the voters themselves cannot prove how they voted" 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.

Mail ballots are subject to coercion. Yet an increasing number of states permit any voter to vote by mail. The practice is so general, even for voters who are not traveling on election day, that it is sometimes called
"early voting" rather than the traditional "absentee voting." In California, according to the Secretary of State, "any registered voter may vote by absentee ballot. Rather than go to the polls to cast a ballot on election day, you may apply for an absentee ballot, which you will need to complete and return to your elections official. All valid absentee ballots are counted in every election in California, regardless of the outcome or closeness of any race." (Emphasis in original.)

A special provision
in Texas election law permits any person aged 65 or over to vote by mail. It is notable that senior voters may be more vulnerable to coercion than others, yet Texas law nevertheless promotes the public interest by extending a special mail ballot provision to facilitate voting by seniors. Approximately one in four seniors nationwide currently votes by absentee ballot. In Oregon, since 1996 all balloting is by mail. It should be noted that Australia, England, Canada and many other developed nations also allow widespread voting by mail as a means of expanding voter participation.

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 foregos 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 we believe the concept appropriate to contemporary conditions in countries 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, no one can identify that it is yours. That is the essence of the secret ballot. VoiceVote is entirely consistent with this concept. This embodies an expanded concept, compared to 100 years ago, of voter rights. You -- the voter -- alone decide whether to discuss how you voted, and what to say about it, if anything. VoiceVote is entirely consistent with this concept also.

There is no evidence that there is an increase in vote fraud or coercion with wider mail balloting or early voting. Clearly, voters are not champing at the bit for wider opportunities to sell their votes, but they are deeply concerned and skeptical about the ability of the system to count their votes.
Denial of a receipt to voters is antiquated, counterproductive and contrary to principle. Antiquated because the economic and political conditions of the 19th century -- overbearing big city political machines, company towns, widespread election-related violence -- have changed. Counterproductive because it precludes the use of one of the most powerful agents of election integrity -- the voter's knowledge of his or her own vote. And contrary to principle because it denies voters what ought to be an intrinsic part of a secret ballot system, and does not invest the decision whether and how to discuss one's vote in the voter.

Aside from whether it is desirable to deny the voter a record of her/his vote, it is also worth examining whether, given existing technology, it is feasible. New digital and materials technologies excel at making images, copying them and transmitting them. The means to do all these things have become small, cheap and ubiquitous. A typical cell phone, for example, could take a picture of a voter's ballot and transmit the image even before the voter leaves the voting booth. Nor, in general, is it illegal for the voter to make and share such a record. Existing laws prohibit anyone else from observing the voter marking his/her ballot. This is an essential part of the secret ballot. But miniaturized camera technology has come to prominence so quickly that the habit of having it always accessible has become well established before the law has even considered its impact. The standard election paradigm requires that the voter be denied a record of the ballot. The existence of small cameras and other mobile electronic devices, many with wireless communication capabilities, poses a significant challenge to election administration to enforce this principle in a socially acceptable way. An attempt to keep the voter's camera out of the voting booth might make the line of people waiting to vote resemble airport security, and have an intimidating effect on the voters.

It is time for our election systems to recognize this reality and to utilize the possibilities for making elections more secure and democratic.
Mail voting has become so extensive and miniaturized camera technology has become so prevalent that, in practice, the rationale for denying a receipt to any voter has been completely discredited. VoiceVote provides each voter a receipt for their own vote in a way that maintains the voter's anonymity and minimizes any possibility of fraud or coercion. Further, it effectively utilizes the voter's knowledge of their own vote and the voting authority's crytographic certification of each ballot to create a higher standard of electoral integrity.

A Brief Comment on the History of Vote Fraud and Coercion

While contention over ballot counting was acute in the presidential elections of 2000 and 2004, the problem of vote fraud has a long history. The complex struggle against ballot fraud in the U.S. dates back to the historic efforts for "
a free ballot and a fair count" following Reconstruction in the South, including the U.S. v. Reese and U.S. v. Cruikshank decisions of the Supreme Court. As Andrew Gumbel writes in Steal This Vote:
Historically, the zero-sum logic of two-party competition has given rise to a number of abuses at the ballot box, as well as an effort to keep those abuses hidden from the general public. In crunch moments, the attitude has been not only: They're probably cheating, so we'd better cheat, too. It has also often been: We won't say anything about what they've done, because that will only encourage them to rat on us in return. It has rarely been productive for a candidate or a party to complain that an election has been stolen, leading as it does to invariable accusations of bad faith, paranoia, and the stirring of needless alarm among voters. Races do get contested, and sometimes overturned, but nobody wins popularity points for dragging the process out through the courts. The understanding, in almost all the great ballot-box standoffs of the past two centuries, has been that a fight is a fight, and the measure of a winner lies in the ability to finish ahead, whether by observing the Queensbury Rules or not.
Worse still are examples of the use of claims of "ballot secrecy" to undermine the right to vote. Because a voter must be literate to cast a written ballot unaided, it has sometimes been used to deny those who could not read (especially former slaves and recent immigrants) the franchise.

The VoiceVote Alternative

The standard argument for denying the voter a receipt asserts that the secret ballot requires denying the voter evidence of how he or she voted. This confuses two essentially different questions -- the right of the voter to vote in secret, and the right of the voter to disclose (or to not disclose) how they vote.
VoiceVote harmonizes these two basic voter rights by incorporating these elementary principles:

1. The voter marks a ballot in secret. There is no link between the voter's ballot and the voter's identity. No one can determine how any person voted by examining the ballots that are cast. But, of course, after casting a ballot in secret the voter knows how she voted. We may call this the First Principle of Voting.

2. The voter has the right to refuse to disclose how she voted, to disclose how she voted, or to lie about how she voted. This is entirely consistent with the principle of ballot secrecy. We may call this the Second Principle of Voting. This right is an essential part of political freedom and should be protected by law and custom.

Perhaps the most dramatic instance of the exercise of the right to disclose was by Senator Wayne Morse of Oregon. The United States Senate, in 1953, had 48 Republican senators, 47 Democratic ones and one independent (Morse had declared himself an independent the previous year). When the Senate convened, Morse, "in the presence of a roomful of reporters filled out an absentee ballot in which he voted for Adlai Stevenson, the Democratic presidential candidate." He then caucused with the Democrats, producing a tie for control of the Senate. Because of Morse's high elected office, his action had great impact, but the significance of the right to disclose one's vote is not limited to elected officials. People routinely discuss their votes if they so choose, and this discussion is an essential part of the texture of everyday democratic political life.

VoiceVote extends the voter's right to disclose and discuss how she voted into a right to determine that her vote is correctly recorded and counted. The key to doing this is to provide the voter with an anonymous, digitally certified record of the ballot cast and to publish the entire set of anonymous, cryptographically certified ballots on the Internet. The voter, utilizing her knowledge of how she voted, may then confirm that the ballot she cast was properly counted. Any person or election watchdog group that comes into possession of a ballot receipt may, utilizing the digital signature, test whether there was error or fraud in the recording of the ballot and -- even without knowing the identity of the voter -- initiate a process of correcting the error or fraud.

In this way, VoiceVote uses digital technologies to empower the public as guarantors of election integrity. It uses the voter's own knowledge and current technologies to secure elections against corrosive and unwarranted suspicions and accusations against the electoral system.

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