Croker Sack

"Democracy is the theory that the common people know what they want, and deserve to get it good and hard." — Henry Louis Mencken (1880-1956)

Sunday, March 13, 2005

Secret ballots in Washington law

I wonder why this law doesn't seem to be mentioned by anyone who talks about the possible need to prove for which candidate a vote was cast in the contested gubernatorial election:


NEW SECTION. Sec. 3. The rights of Washington voters are protected by its Constitution and laws and include the following fundamental rights:
(1) The right of qualified voters to vote at all elections;
(2) The right of absolute secrecy of the vote. No voter may be required to disclose political faith or adherence in order to vote;
(3) The right to cast a vote for any candidate for each office without any limitation based on party preference or affiliation, of either the voter or the candidate.

That is in Initiative 872, approved by the voters November 2, 2004, and effective December 2, 2004. It is Chapter 2, section 3 of the Session Laws of 2005.

It is codified at RCW 29A.04.206.

How could the petitioners be required to prove for whom questioned ballots were cast in the contested election? Requiring an answer to that question would violate the "right of absolute secrecy of the vote" guaranteed by the people to themselves when they approved I-872.

I wonder if Rossi's lawyers have factored this into their strategy. I don't recall seeing it mentioned by anyone in briefs or in reports about the oral arguments or in "sound bites" in the news.


Blogger chew_2 said...

I Doubt this statute adds any additional support to the GOP's (bogus) legal argument: that if it's too hard to comply with a statutory requirement, you should just ignore it and make up something easier to comply with in it's place.

To the extent that this statute *could be* (emphasis added) interpreted to prohibit forcing illegal voters to disclose how they voted, I presume there are already Constitutional provisions, caselaw, and statutes in place which likewise could be so interpreted.

E.g. the 5th Amendment bars self -incriminaton, the Morgan v. Aaalgaard and other? cases, other statutory and constitutional provisions speaking to vote privacy. Admittedly, I haven't researched them all.

See the dicta in Aalgaard, where the Court says a voter disqualified for using an improperly printed ballot can't even voluntarily testify about his vote in order to show how he voted.

Significantly, this statute doesn't explicitly bar testimony about how a voter voted, only information about their party affiliation as a qualification to vote in a partisan primary. Clearly a clever lawyer could argue this law doesn't apply in a case designed to protect the integrity of the election system.

Moreover, a clever lawyer could also argue these "privacy" considerations only apply to LEGAL VOTERS, NOT TO ILLEGAL OR IMPROPER VOTES. When the statute uses the word "voter" it only mean't a "qualified" or legal voter. And the so called "right of privacy" should only extend to them.

Finally it's unclear to me whether a statute can create a "right of privacy". Isn't that something for the constitution, and shouldn't this language be seen as a mere restatement of policy and motivation for the statute, rather than the creation of some specific statutory duty or "right".

March 14, 2005 10:16 AM  
Blogger Micajah said...

If the Dems would stipulate that the illegitimate ballots are in fact illegitimate (that is, they are not votes which were legally cast and counted), then it would be worth it to concede in return that the "right of absolute secrecy of the vote" doesn't apply to them.

I'm tired of hearing the argument that most of those ballots must have been cast by qualified electors, and that it's just "human error" that caused them to be included in the vote count. It doesn't matter whether it was error or fraud -- they aren't legitimate votes. It doesn't matter that the Dems believe the ballots were cast by qualified electors, since the ballots cannot be shown to have been so cast.

As for creating a right to privacy by statute, I know of nothing that would limit doing so. If the statute says there is a right to absolute secrecy of the vote, then there is -- unless you can find a way to argue that the statute is unconstitutional.

March 14, 2005 6:49 PM  

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