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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

the gods from engineering
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BobE
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6 Answers6

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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?

origimbo
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  • Please see the recently added edit to the original question – BobE Oct 07 '20 at 11:58
  • Comments are not for extended discussion; this conversation has been moved to chat. – JJJ Oct 08 '20 at 01:48
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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 08 '20 at 08:26
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    This answer addresses the British voting system but the question is asking about the United States. – TylerH Oct 08 '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 09 '20 at 21:06
  • @BenVoigt inherited law from the British tradition is irrelevant here unless it specifically has to do with current US law applicable to OP's question. If origimbo replied with current US law and then spoke about how it was inherited from British tradition/law, that'd be fine. But they didn't; they just replied as if this were tagged [tag:united-kingdom] instead of [tag:united-states]. It does not answer the question being asked at all in its current form. – TylerH Oct 09 '20 at 21:11
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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 09 '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 09 '20 at 23:00
  • @TCooper Cool, when the US and UK legal codes are only an elementary level of different from one another, come back to me. – TylerH Oct 10 '20 at 00:51
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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.

Bryan Krause
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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 07 '20 at 00:29
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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 07 '20 at 00:39
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    @Obie Yeah, I'm not really attempting to answer "what should be done in this specific situation", or state how the laws should be, just the questions asked about the purpose of ballot secrecy. – Bryan Krause Oct 07 '20 at 00:45
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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 07 '20 at 09:33
  • Please see the recently added edit to the original question especially the PA statute changes. – BobE Oct 07 '20 at 12:01
  • @BryanKrause - That is certainly easy to say. The number of voting booths needed to ensure that everyone can vote would be impracticably expensive, which is part of the reason that mail-in voting exists in the first place. There are things that can prevent me from voting in-person at all -- what if I am in quarantine because of exposure to coronavirus? – Obie 2.0 Oct 08 '20 at 00:47
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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 08 '20 at 06:21
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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 08 '20 at 14:14
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    @BryanKrause Mail in voting is known to be easily open to fraud. That is why several countries have/had outlawed that option. See France. – paulj Oct 09 '20 at 14:51
  • @Obie2.0 A secure envelope costs at most a few cents. See Staples for cost. Please be genuine. – paulj Oct 09 '20 at 14:54
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    @paulj and yet here we are talking about the United States, where there are several states with many years (and millions) of mail-in ballots that have extremely rare instances of voter fraud associated with the mail-in process. – BobE Oct 12 '20 at 18:33
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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.

Ben Voigt
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  • Re "If secrecy is optional, then retaliation can take place...": not necessarily -- let's suppose a retaliatory faction zealot asks an opposition voter who they voted for; the opposed voter is in effect coerced, and therefore feels no obligation to provide a truthful answer: "Why I voted for your guy of course." – agc Oct 07 '20 at 00:35
  • Also if voter secrecy was compulsory, that would seem to do away with polling. – agc Oct 07 '20 at 00:37
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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 07 '20 at 00:46
  • Even if it were true, as a district court memorably said when striking down New Hampshire's law against ballot photos, it would amount to burning down a house to roast a pig. – Obie 2.0 Oct 07 '20 at 00:48
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    BTW, I believe that coercion is covered in other statutes, what I intend to illustrate here is a procedural matter and the consequence thereof. – BobE Oct 07 '20 at 02:51
  • @Obie2.0, Re "...they are talking about revealing the actual ballot...": In the second paragraph of the answer, yes. But in the third paragraph, we presume that for secrecy to be optional that the actual ballot need not be revealed. – agc Oct 07 '20 at 02:52
  • I'm not sure that I can agree with your assertion that something cannot be a both a privilege and a choice. If I choose to show my ballot to my wife and kids and my neighbor and my boss as I am placing the ballot in it's required envelope and then into the mailing envelope and dropping it into a USPS mail box have I not elected to not exercise my privilege of secrecy? Should my vote be sanctioned for that action? – BobE Oct 07 '20 at 02:58
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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 07 '20 at 11:48
  • Thanks for your answer. Please see the recently added edit to the original question especially the PA statute changes. – BobE Oct 07 '20 at 12:02
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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 07 '20 at 15:50
  • I'd be inclined to agree with your scenario, if there was already an underlying crime being committed by the boss/wife/children. Absent that preexisting coercion, there would be absolutely nothing intrinsically wrong with a voter showing his ballot to another person. Can you agree with that? – BobE Oct 07 '20 at 16:32
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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 07 '20 at 17:05
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    @ilkkachu, Re "... the malicious actor will just ask to see your actual ballot...": that would be impossible or at least quite impractical in the US, as voters never keep the completed ballot on their person for long. They're handed the ballot at the polls, fill it out, and never see it again. Or with mail-in, they get a blank ballot, fill it in, seal the envelopes, drop it off, and never see it again. The window of criminal opportunity is small, and does not scale. – agc Oct 07 '20 at 22:31
  • @ilkkachu - I find it implausible that fining voters for revealing their ballots does anything to dissuade someone willing to commit assault and battery from pressuring them to reveal their ballots, nor does the prospect of a fine seem likely to ourweigh the prospect of an argument. – Obie 2.0 Oct 08 '20 at 00:50
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    @agc: Firstly, most voters now carry with them cameras that can transmit a photo of their ballot paper anywhere on earth. Secondly, ballot papers are visible when they are counted (and in well-run elections this is a requirement, so that the vote can be publicly verified). – Matthew Oct 08 '20 at 10:09
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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 08 '20 at 10:34
  • @IlmariKaronen - I can't make any sense of what you wrote: "a law that would make changing your opinion of someone based on how they voted" . Is anyone proposing such a law? – BobE Oct 08 '20 at 17:35
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    @BobE: You asked about the "underlying crime being committed by the boss/wife/children" and suggested that if there wasn't one, then "there would be absolutely nothing intrinsically wrong with a voter showing his ballot to another person." I disagree, and I was trying to point out that the reason why there's no law against learning how someone else voted is because such a law would be impossible to enforce, not because the behavior itself is harmless and OK. – Ilmari Karonen Oct 08 '20 at 18:19
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    @BobE: […] You do understand why it would be bad if e.g. your Trump-supporting boss could ask you for undeniable proof that you didn't vote for Biden (or vice versa), right? ("Just out of curiosity, of course. You don't have to tell me or show me your ballot if you don't want to. And I promise you that whether or not you show me your ballot isn't going to have any effect on my opinion of you. And even if it did, I certainly wouldn't let it affect your employment or chances of promotion in any way, because that would be illegal if someone could prove it, of course.") – Ilmari Karonen Oct 08 '20 at 18:39
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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.

Joe C
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  • To shorten you answer: It is the obligation of the voter to maintain his voting choices in secret, the penalty for failing to do so is invalidation of his choices, this is established by statute in Pennsylvania. However, if the voter chooses to tell everyone in the polling place what his choices are, then at worst he is a nuisance, but would likely not be sanctioned by being disenfranchised. Do you see the conflict there?. – BobE Oct 07 '20 at 02:10
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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 07 '20 at 11:46
  • Please see the recently added edit to the original question especially the PA statute changes. Thanks for you answer. – BobE Oct 07 '20 at 12:03
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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 07 '20 at 17:33
  • @reirab so you are saying that the rule ("naked ballots" = discard) is preventative? What prevents a postal worker from "losing" all ballots in a specific neighborhood. Your scenario requires postal fraud to have occurred first. (Perhaps could be avoided by having ballot drop boxes at polling stations??) – BobE Oct 07 '20 at 18:27
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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 07 '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 08 '20 at 19:47
  • A requirement to fill out the ballot in secret can't reasonably be enforced. So, in practice, you can show the ballot to the entire neighborhood as long as the vote counters receive it in the proper envelopes. If you could prove the neighbor showed his ballot to his boss before mailing it, the law might invalidate the ballot, but that's not realistic in many cases (and the law you quoted doesn't strictly say that's even true; it says voters are required to fill it out in secret, but doesn't give a penalty for not doing so). – MichaelS Oct 09 '20 at 00:49
  • @BobE The laws regarding a voters behavior in the polling place are quite strict. It is a felony(in some places, you can check the rest) to divulge your vote in a polling precinct:

    Sec. 61.006. UNLAWFULLY DIVULGING VOTE. (a) A person commits an offense if the person was in a polling place for any purpose other than voting and knowingly communicates to another person information that the person obtained at the polling place about how a voter has voted. (b) An offense under this section is a felony of the third degree.

    (https://statutes.capitol.texas.gov/Docs/EL/htm/EL.61.htm)

     – Mike Vonn Oct 09 '20 at 14:29
  • @BobE. So, while the person may not be disenfranchised on the election in which they do this, they can be disenfranchised permanently for such behavior. – Mike Vonn Oct 09 '20 at 14:30
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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 09 '20 at 15:24
  • @BobE I wouldn't recommend trying it. This statute does apply to a persons own vote, the only question is whether you can make a jury agree that your only purpose in being there was to vote, and to not electioneer. Good luck with that.

    The described behavior just does not exist at any polling place that I have visited in the past 20 years or so that I have been voting. This behavior of photographing ones ballots and sharing them would get you kicked out and charged from any in person polling place.

     – Mike Vonn Oct 09 '20 at 22:45
  • @MikeVonn I think you are misunderstanding the statute. take for example exit polling, or as I walk to my car with my wife I tell her that I voted for so-and-so. It is ludricous that either would be a felony. See https://law.stackexchange.com/questions/57030/is-illegal-for-a-us-voter-to-disclose-their-ballot-choices, for answers from Law stack- exchange. – BobE Oct 10 '20 at 02:15
  • @BobE Exit polling is actually illegal under these statutes, as written. It is only allowed because the election officials in charge choose to make a special finding supporting it. https://www.sos.texas.gov/elections/laws/advisory2018-33.shtml – Mike Vonn Oct 12 '20 at 19:41
  • @BobE Also, being ludicrous never prevented a law from being written. Laws are written by people, who are fallible, and sometimes don't think through all the consequences. This is why we have trials and juries. Check out Sec. 61.014. USE OF CERTAIN DEVICES. It is illegal to make a cellular phone call while within the 100 foot perimeter. – Mike Vonn Oct 12 '20 at 19:47
  • @BobE Your question on the Legal stack is related, but not exactly relevant. This discussion was about whether it was legal to disclose your ballot choices while within a polling place, not generally. This is an important distinction, because disclosing it elsewhere prevents actual proof from being developed, thus preserving many of the benefits of anonymity. – Mike Vonn Oct 12 '20 at 19:58
  • @MikeVonn You only think that the this initial Q was about disclosing within the voting station, however if you read the question I talk about disclosure outside the voting station. Additionally, the Texas statute you cite, specifically refers to a voter who was in a voting station. – BobE Oct 12 '20 at 20:53
  • @BobE My comments are directed at this incorrect comparison you made: "However, if the voter chooses to tell everyone in the polling place what his choices are, then at worst he is a nuisance, but would likely not be sanctioned by being disenfranchised. Do you see the conflict there?"

    That incorrect idea that you have on the nature of in-person voting seems to a major cause of your confusion, so I am trying to add clarifying information in this regard, not answer the question entirely.

     – Mike Vonn Oct 12 '20 at 21:08
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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).

Flydog57
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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 07 '20 at 04:16
  • 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 07 '20 at 04:24
  • (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 07 '20 at 04:27
  • Please see the recently added edit to the original question especially the PA statute changes. Thanks for your input. – BobE Oct 07 '20 at 12:05
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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 07 '20 at 13:54
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    I understand, BTW you may be interested in the following: https://www.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 07 '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.

agc
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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: https://www.ncsl.org/research/elections-and-campaigns/secrecy-of-the-ballot-and-ballot-selfies.aspx, it would appear that voters are increasingly given the right to publish their (own) voting choices. – BobE Oct 07 '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 08 '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 08 '20 at 19:14