Winston Churchill opined, “My idea of it [democracy] is that the plain, humble, common man...goes to the poll at the appropriate time, [and] puts his cross on the ballot paper. [T]his man, or woman, should do this without fear, and without any form of intimidation or victimization. He marks his ballot paper in strict secrecy.”
Voters of all ages, from those nostalgic for curtained voting booths to those comfortable with online voting, may be dismayed to learn that the U.S. Constitution does not guarantee the right to a secret ballot. In fact, voting during the first 100 years of our nation was a very public matter. Much like contemporary participants in political party caucuses, voters were required to voice their electoral choices. Australia is credited with enacting the first voter privacy laws designed to combat the corruption and undue influence engendered by public voting. Private balloting was first introduced in the United States in 1888.
Voters of all ages may be dismayed to learn that the U.S. Constitution does not guarantee the right to a secret ballot.
In 2017, Donald J. Trump garnered bipartisan criticism when his Presidential Advisory Commission on Election Integrity requested voter information from state election commissions that included full names and addresses, birth dates, partial Social Security numbers, party affiliation, felony convictions, military status, overseas citizen information and voting history (meaning whether, not for whom, a person voted). The stated purpose of the commission is to enhance confidence and deter fraud in federal elections, but critics contend the effect, and even the actual intent of the commission, is voter intimidation.
Democratic Senators questioned why the committee is focusing on gathering information about U.S. citizens rather than cyberthreats from foreign governments. Mississippi’s Secretary of State put it more colorfully: “They can go jump in the Gulf of Mexico and Mississippi is a great State to launch from. Mississippi residents should celebrate Independence Day and our State’s right to protect the privacy of our citizens by conducting our own electoral processes.”
Indeed, both voting and privacy are primarily state law issues. The U.S. Constitution prohibits voting discrimination based on race,sex and age (over 18 years), and federal statutes (the Voting Rights Act, National Voter Registration Act and Help America Vote Act) provide some specific protections, but states are responsible for registering voters, maintaining voter registration information and conducting elections. All states make some voter information available to political parties and candidates.
Public access varies from state to state and runs the gamut from Ohio’s free publicly accessible online database, which lists the names, addresses and party affiliations of registered voters, to Illinois’s ban on the public release of voter information. (It should be noted that Ohio provides a mechanism for domestic violence victims to remove their addresses from the list.)
Several lawsuits have been filed challenging the authority of the Presidential Advisory Commission to request and store voter information. Challenges based on the E-Government Act, which requires federal agencies to conduct a privacy impact assessment prior to gathering identifying information, were dismissed because the commission is not an agency; an appeal is pending. At least one other lawsuit alleges the commission is racially motivated and discriminatory.
Regardless of whether the commission’s information gathering is legitimate, the realization that old-fashioned voter intimidation can be combined with electronic-age cyberhacking is enough to deter some citizens from exercising their right to vote. It has been reported that the New York League of Women Voters “has received many phone calls from individuals wishing to ‘unregister’ themselves and remove themselves from the state voter database in order to remain anonymous to the commission.’’
For many of us, the horse is already out of the barn. Our information has been or soon will be made available to the commission, but we should not despair. We can lobby our federal and state legislators to improve privacy protections for future voters or we can agree with Justice Antonin Scalia, who espoused a fearless electorate:
Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. [A] society which...exercises...democracy...hidden from public scrutiny and protected from the accountability of criticism...does not resemble the Home of the Brave.