From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 October 2021
- Secret ballot — Referenda — Right to vote
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey
1 Secret ballot (also known as Australian ballot) is one of the voting methods by which voters make their choice in elections or referendums (direct democracy) on an anonymous basis. The secret ballot is one of the basic principles of electoral law referring solely to the right to vote and including this phase of the electoral process, which is called the act of voting. Its essence as well as major advantage is the establishment of guarantees of a voting organization that ensures nobody except for the voter knows their electoral decision. Secrecy of voting is an indispensable guarantee of the free expression of individual voting preferences. It also protects voters from the possible consequences of voting in a specific manner, regardless of the positive or negative character of these consequences (G 36/58, VfSlg. 3426 (1958) (Austria); W I-3/72. VfSlg. 6864 (1972) (Austria)).
2 Secret ballot is related to at least three questions: 1) open voting which is the opposite to secret ballot, as it ensures the possibility to learn election results; 2) free elections which involve the fact that a voter may use their electoral rights in a way free from any physical or mental force, or other external factors; 3) open elections which leads to the fact that no phase of elections—apart from the act of voting—may be secret.
3 Nowadays, the performance of the secret ballot would not be possible without many guarantees which ensure secrecy of voting. These guarantees aim at eliminating the potential or real threats to obtaining information concerning the voting. Guarantees are of differentiated character, as they refer to the functional, organizational, procedural, and personal sphere. Their execution in particular elections may differ.
B. Secret Ballot and Open Voting
4 In the past, secret ballot was not considered as a condition necessary for democratic elections. On the contrary, in ancient democracies (Greece and Rome), voting was open. For instance, the Athenian People’s Assembly, deliberated on Pnyx Hill and numbering a few or even over a dozen thousand citizens, made decisions by a showing of hands (cheirotonia). First, those citizens who voted in favour of a considered matter showed their hands, followed after that by those who voted against. In this case the voting result was just estimated, and only in the case of a quite similar number of votes in favour and against was a procedure of counting initiated. Only in exceptional cases was a secret ballot held by placing pebbles (psefos) in a special ballot box. Voting in tribunals was always performed in the form of a secret ballot. In the fourth century BC each judge received two bronze discs with a diameter of circa five millimetres. Each disc had a sleeve running through it, which was pierced to vote for innocence and filled in to vote for guilt. When a voter held both discs in their hands covering one side of each of them with their thumbs, it was impossible for observers to see which disc was cast into a bronze ballot box, and which one was discarded in a wooden pot nearby. After all votes were collected, the number of how many votes of the two types were placed in a bronze ballot box was carefully counted. For instance, Plato wrote in Phaedo that Socrates was found guilty with a relatively small majority of votes: 280 for guilty and 221 for innocent (Rzażewski, Słomczyński, and Życzkowski 18–19).
5 Open voting was generally practised in the eighteenth and nineteenth centuries. Even in the nineteenth century John Stuart Mill condemned the supporters of the secret ballot who rejected—in his opinion—the understanding of voting as a public function (see Kinzer 59), and in consequence approved of the fact that voters are led in voting by their selfish interest, fancy, or even whim:
It may, unquestionably, be the fact that if we attempt, by publicity, to make the voter responsible to the public for his vote, he will practically be made responsible for it to some powerful individual, whose interest is more opposed to the general interest of the community than that of the voter himself would be if, by the shield of secrecy, he were released from responsibility altogether. When this is the condition, in a high degree, of a large proportion of the voters, the ballot may be the smaller evil (Mill (1861) 126).
6 Also Montesquieu promoted open voting, however his argument was quite different: ‘The people’s suffrages ought doubtless to be public and this should be considered as a fundamental law of democracy’ (Montesquieu 28). Among supporters of open voting were also some of the radical movements (Jacobins) during the French Revolution.
7 The first written constitutions, that is the US Constitution of 1787, the Constitution of Poland of 1791 and the Constitution of France of 1791, did not state the rule of a secret ballot. This was characteristic of the initial period of development when the rules of electoral law were not given constitutional significance. The rule of secrecy of voting was stated for the first time in the Constitution of France: 1795 (Fr), which prescribed in Article 31: ‘All elections are by secret ballot’ (‘Toutes les élections se font au scrutin secret’). Similarly, the French Constitution: 1848 (Fr) stated in Article 24 that ‘The election is direct and universal. Ballots are secret.’ (‘Le suffrage est direct et universel. Le scrutin est secret’).
8 The rule of a secret ballot was introduced not earlier than 1856 in South Australia, Tasmania—the so-called Australian ballot (see Newman 93). It was then introduced in New Zealand (1870), Switzerland and Great Britain (1872), Canada (1874), Belgium (1876), Norway (1884), the United States (1888), Denmark (1901), France (1914), Poland (1918), and Turkey (1950). According to Mackenzie generally it can be stated that the popularization of the secret ballot in legal and political culture took place in the first half of the twentieth century and at the same time open voting was, in fact, considered obsolete (Mackenzie 127). Nowadays, views according to which there are advantages of potential open voting are rather rare. The victory of the principle of the secret ballot, which is an individual treatment of electoral decisions, as well as the need for full protection of free decision making, is believed to be the victory of the idea of democratic, free elections. In this sense the act of voting is separated from the vote itself; the vote must be secret for its personal (private, individual) character, whereas the act of voting is a public (civic) act (Watt 62–3).
9 Secret ballot is a standard of constitutional law. Constitutions of contemporary democratic states provide a catalogue of electoral law rules and state explicitly the rule of secrecy of the ballot. It is applied in parliamentary elections, presidential elections, local elections, and in elections to the European Parliament—in the case of member states of the European Union. Its significance and relevance is emphasized by the fact that in the constitutions of some countries it is specified at the very beginning, which means that it refers to all types of elections. For instance in the French Constitution it is stated in Article 3 that the ‘ballot … shall always … be secret’. Similarly, in Article 15 of the Constitution of Japan: 7 October 1946 (Japan) this rule is given an imperative character: ‘In all elections, secrecy of ballot shall not be violated’, as well as in the Argentinian Constitution: 1 May 1853 (Arg) which prescribes in Article 37 that the rule of secrecy of the ballot shall be applied in elections. There are also constitutions (for example the Constitution of the United States) that do not specify the rules of electoral law, including the rule of secrecy of the ballot. On this basis various types of limitations are implemented, for example the numbering of ballot papers. For example, in 2012 this procedure was ruled legal by Federal District Judge Arguello in Colorado, who determined that the US Constitution does not grant a right to a secret ballot (Hill v Williams (2016) (US)).
10 Secret ballot is also a standard of international law. It is stated in the Universal Declaration of Human Rights (1948), which stipulates in Article 21(3) that ‘the will of the people … shall be expressed in periodic and genuine elections which … shall be held by secret vote or by equivalent free voting procedures’. Also, Article 25 of the International Covenant on Civil and Political Rights (1966) refers to it:
11 It is as well stated in Article 23 of the American Convention on Human Rights (1969): ‘Every citizen shall enjoy the following rights and opportunities: … b) to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters’. It was prescribed by Article 7(4) of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Commission on Security and Cooperation in Europe, which obligated the member states of the Organization for Security and Cooperation in Europe to ‘ensure that votes are cast by secret ballot or by equivalent free voting procedure, and that they are counted and reported honestly with the official results made public’.
12 Despite the secret ballot being a standard of the democratic state nowadays, there are countries which still hold open voting. Exception from secret ballot can be found in Swiss cantons Glarus and Appenzell Innerrhoden where open voting is held during people’s assembly (Landsgemeinde) together with elections of representatives to the lower house of federal parliament (Fleiner, Misic, and Töpperwien 91). This specific and unusual Swiss method of decision making is called an ‘open-air democracy’ (Bhagwan 355).
C. Secret Ballot and Free Elections
13 The rule of free elections can be understood as an extension of the rule of ballot secrecy. The rule of free elections requires that each voter may exercise their right (to choose and to be chosen) without any compulsion (either physical or mental) or other restriction. The rule of free elections forbids any types of monopoly and requires political pluralism and freedom in appointing candidates, as well as free competition of electoral committees in an electoral campaign (Żukowskiukowski 37; political candidates and campaigns).
14 The rule of free elections is explicitly stated in some contemporary constitutions (eg Armenia, Croatia, Estonia, Germany, Italy, Kazakhstan, Kenya, Macedonia, Moldova, Norway, Papua New Guinea, and Spain). For instance, Article 48 of the Constitution of Italy: 27 December 1947 (It) provides that ‘the vote is personal and equal, free and secret. The exercise thereof is a civic duty’; the German Constitution: 23 May 1949 (Ger) says, ‘In each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections’ (Art. 28); the Constitution of Spain: 6 December 1978 (Spain) says, ‘The Congress shall consist of a minimum of three hundred and a maximum of four hundred Members, elected by universal, free, equal, direct and secret suffrage, under the terms to be laid down by the law’ (Art. 68(1)); the Constitution of Estonia: 28 June 1992 (Est) provides, ‘The Riigikogu comprises one hundred and one members. Members of the Riigikogu are elected in free elections according to the principle of proportional representation. Elections are general, uniform and direct. Voting is secret’ (s 60).
15 The rule of free elections is considered as a synonym for democratic elections which is explained in the following manner: if elections are not free, they cannot be considered democratic. Such a point of view sometimes causes a belief that separation of the rule of free elections is unnecessary. The meaning of the rule of free elections was clearly explained by the Federal Constitutional Court of Germany (Bundesverfassungsgericht) which stated that
16 In conclusion it should be stated that the rule of free elections involves, in the first place, necessity of ensuring to voters the freedom of voting, which is in fact the rule of free elections.
17 The principle of voting secrecy cannot be extended to other elements of the electoral process, which should, and even must, be open, in other words, the ordering of elections, registering of candidates or candidates’ lists, financing of elections, determining election results (distribution of seats), considering electoral objections, and declaring the validity of elections. The principle of election openness has been determined under the jurisdiction of the German Federal Constitutional Court as a fully-fledged principle of electoral law (BVerfGE 121, 266 (Ger)). The Federal Constitutional Court has adjudicated that all significant elements of the electoral process must be open and transparent, and all exceptions within that matter must be justified by other equally important constitutional reasons. The abovementioned judgment led to discordant opinions. On the one hand, the need of establishing the rule of openness was questioned, as most commentators believed it was unnecessary and—in fact—equal to the principle of the secret ballot. On the other hand, it was pointed out that the aim of the Court was not to needlessly multiply the rules of electoral law, but to strengthen the guarantees of electoral law and social control of particular phases of the electoral process (BVerfGE 121, 266 (2009) (Ger); Bożek 337).
18 These two principles are also differently understood as regards their character and scope of implementation. The principle of secrecy of voting is understood as a material guarantee of the freedom of voting, as well as other forms of exercising electoral law, whereas the principle of election openness is understood as a formal guarantee that refers to the whole electoral process, contributes to public control of particular phases of this process and election transparency, and leads to increased efficiency, as well as enables the performance of other rules of electoral law (Mauer 378–9). Consequently, the secret ballot cannot be identified with secrecy of election, which can be stated as follows: elections are open, voting is secret.
D. Guarantees of the Secret Ballot
19 Provisions of electoral law provide numerous guarantees of secret ballot. The aim of such guarantees is to eliminate potential or real threat of disclosing the act of voting. These guarantees are much differentiated as they refer to the functional, organizational, personal, and procedural sphere. In some cases they are differently executed when it comes to particular elections (parliamentary, presidential, or local).
1. Functional Guarantees
20 Among functional guarantees of secret ballot there is the question of proper establishing of electoral commissions which are composed of several members and generally represent each electoral committee (electoral commission). In this group of guarantees of ballot secrecy there is also the institution of an observer. Nowadays there are three different types of observer: partisan national observers, non-partisan national observers, and international (non-partisan) observers. In practice the distinction between the first two categories is not always obvious. Observation is not confined to the actual polling day but includes ascertaining whether any irregularities have occurred in advance of the elections, during the elections, or after polling (especially during the vote counting and announcement of the results). The institution of an observer is prescribed by some constitutional provisions. For instance, Article 56(12) of the Constitution of Malta: 21 September 1964 (Malta), states that ‘candidates and their agents shall be given facilities to watch the transportation of ballot boxes and the sealing and unsealing thereof’. Whereas the Constitution of Zambia provides that the Electoral Commission shall accredit observers and election agents, as prescribed (Art. 229(2)(f) Constitution of Zambia: 24 August 1991 (Zam)). It is worth noting that the Council of Europe puts an emphasis on the issue of independent observation of elections as an effective mechanism of monitoring, which eliminates the risk of irregularities. It is pointed out that such monitoring should refer to both the course of voting and the phase directly following voting—counting the votes. At the same time it is emphasized that the efficiency of observing the course of voting depends on two basic circumstances: covering with monitoring as many electoral procedures as possible, as well as the pluralization of election observers, as they should represent as many points of view as possible; in particular, their number should include opposition representatives.
2. Organizational Guarantees
21 Organizational guarantees consist not only of providing a separate space in the form of booths, desktops, and table screens that enable a voter to freely make a decision, but also fulfil a number of other (additional) formal requirements, such as a) preparation of similar ballot papers (printed with the same typeface and size of font), b) one-sided printing of ballot papers, c) prohibition of placing on the ballot papers any marks or numbers that enable the voter’s identification, d) assurance of no monitoring in the voting place, e) appliance of similar tools in voting (eg pens), f) prohibition of giving ballot papers to electoral committee members and requirement of placing such papers in a ballot box, g) requirement of the sealing (closing) and sometimes double securing of a ballot box (sometimes with transparent walls), and h) prohibition of staying in a voting place of unauthorized persons. For example, the Swedish Riksdag Act, Chapter 7, Part 4, Article 4, Supplementary Provision 7.4.1 states that ‘Ballot papers shall be single sheets, folded and unmarked, and shall be identical in size, material and colour. They may include information concerning the election to which they relate. A ballot paper is invalid if it carries any distinguishing mark clearly placed upon it with deliberate intent’. Sometimes, for instance in Australia, in the case of entering any notes on ballot papers that would enable identifying a voter, the ballot shall be deemed void (Art. 268 of the Commonwealth Electoral Act 1918 No. 27 (1918) (Swed)).
3. Personal Guarantees
22 Among the most significant personal guarantees is the requirement of providing places that ensure the secrecy of voting, without participation of third parties.
4. Procedural Guarantees
23 Among procedural guarantees of the secrecy of the ballot there are provisions of criminal law which must be emphasized. Such a regulation meets its strictly stated tasks included in international documents that specify the issue of democratic elections. For instance, in Germany the violation of secrecy of the ballot (Verletzung des Wahlgeheimnisses) is penalized in section 107c of the Criminal Code (Ger). In accordance with this provision, ‘whoever contravenes a provision which serves to protect the secrecy of elections with the intent of obtaining for himself or another knowledge as to how someone voted, shall be punished with imprisonment for not more than two years or a fine’. The person committing this crime may do so only on purpose with direct intent. The Polish Criminal Code in Chapter XXVI ‘Crimes against elections and referendums’ states in Article 251: ‘Whoever, in violation of the rules of secrecy on voting, acquires knowledge of other person’s way of voting, contrary to the will of such a voter, shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years’. Generally, acts involving obtaining knowledge on how someone voted against the will of the voter, together with the violation of provisions regarding the secrecy of the ballot, are penalized.
E. Contemporary Issues Related to the Secret Ballot
1. Procedures for Creating Electoral Committees and Registration of Candidates
24 Procedures for creating electoral committees and registration of candidates may be considered as a kind of disruption for secrecy of ballot. Generally, for creating an electoral committee and for the registration of candidates the signatures of a specified number of voters must be presented. By giving such a support voters disclose their political preferences as it is quite obvious that a voter will vote for that list or that candidate.
2. Voters Who Are Blind or Disabled or Who Cannot Read or Write
25 It is a contemporary challenge for the rule of secrecy of voting to ensure the possibility of voting in elections and referendums for those voters who are blind or disabled or those who cannot read or write. For this purpose, exceptions from the rule of ballot secrecy are accepted. This question is recognized by the constitutional lawmakers in Malta, as Article 56(10) of the Constitution of Malta stipulates:
26 Furthermore, in accordance with Article 56(11) of the Constitution of Malta, ‘ballot papers shall be drawn up in such a manner as to enable illiterates to distinguish between the political parties to which candidates belong’.
3. Correspondence Voting
27 Questions related to secrecy of the ballot refer to correspondence voting as it may enable linking the sent voting package with the person who sent the ballot paper. There also can occur the issue of voting by a person who is not entitled to vote. The risk is eliminated by receiving a voting package in person, and then giving it back to an election committee. Surely for these reasons Austrian constitutional lawmakers, implementing the institution of correspondence voting, decided that ‘the identity of the applicant is to be proven prima facie. The qualified voter has to declare by signature in lieu of oath, that the vote has been cast personally and confidentially’ (Art. 26(6) of the Constitution of Austria: 1 October 1920 (Austria)). The abovementioned doubts were considered by constitutional courts which differently referred to that question. For instance, the Austrian Constitutional Court, declaring unconstitutionality of correspondence voting, stated that a voter who intended to use this right, is left on their own if they want to vote ‘secretly’ and must face third parties’ pressures (G 18/95, VfSlg. 10412 (1985) (Austria). The German Federal Constitutional Court stated that a voter who votes via correspondence is obliged to keep secrecy of voting. The German Constitutional Court declared, contrary to the Austrian Constitutional Court, that ‘transferring’ this obligation to a citizen does not disqualify these provisions. At the same time other significant constitutional values are performed (BVerfGE 21, 200 (1967) (Ger)).
4. Transferable Ballot Boxes and Supporting Ballot Boxes
28 There is also the question of voting outside a voting place with the appliance of transferable ballot boxes and a related issue—filling a ballot paper in the presence of an electoral committee member. They are used on a mass scale in countries like Belarus and Russia. Such ballot boxes are used in workplaces, as well as areas of low population density. There is also another problematic question—supporting ballot boxes used in separate electoral districts, that is, hospitals and social assistance houses. They are used because of another constitutional value, which is the right to vote in elections. In a case where a voter declares their will to use a supporting ballot box, putting a ballot paper in requires in some cases that at least two members of the electoral committee be present. Additionally, these members must be appointed by two different election committees.
29 An important question relating to the secrecy of the ballot while voting via the Internet (i-voting) is who is responsible for security in voting. On the one hand there is a view according to which the state and its authorities are obliged to ensure the secrecy of voting only within specified frames, from the moment a vote is sent from the device used to cast the vote (computer, tablet, or smartphone). The voter must be aware of the risk of losing their vote even before it is sent. On the other hand there is a view according to which the state and its authorities should ensure the secrecy of the ballot from the very beginning to the end of the whole procedure. Acceptance of the latter view highly complicates, or even makes impossible, the implementation of i-voting as the state (and its authorities) are not capable of ensuring full secrecy of the ballot. For example in Estonia, a leader in the implementation of electronic forms of voting, where asymmetric encryption is applied. A pair of keys (private and public) is generated in this way so that the private key is never disclosed. The public key is linked with the application that is used to vote, whereas the private key is used in the application that counts the votes. It is indispensable for the State Election Commission to read the vote (Madise and Vinkel 7). In some countries there are strong doubts whether the introduction of i-voting fulfils requirements for secret ballot. From this point of view, the reflection of the Federal Electoral Tribunal in Mexico (Case SUP-JRC-306 (2011) (Mex)) regarding the rule of secrecy of the ballot in online voting is particularly interesting. Comparing two values, which are on the one hand the right to vote, and on the other the right to vote freely and in secrecy, the Court adjudicated that online voting is a proportional solution that makes it easier to vote in elections and does not undermine the rule of secrecy of voting (Barrat 188–9).
30 It is worth noting that voting via the Internet creates another problem, which is providing all voters with access to the Internet. This question was noticed by the Greek constitutional lawmaker who states in Article 5A(2) (added on the basis of amendment of 6 April 2001) of the Constitution of Greece: 9 July 1975 (Greece): ‘All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State, always in observance of the guarantees of articles 9, 9A and 19’. Nevertheless it must be added that the Estonian Supreme Court adjudicated that the principle of equal treatment, as regards elections, does not guarantee each type of voting at the same level of availability to all individuals who have the right to vote (Case 3-4-1-13-05 (2005) (Est)).
31 Nowadays secret ballot has become conditio sine qua non for democratic elections. Still, the following question must be answered—whether secret ballot is a privilege that can be exercised or an obligation? Generally it is believed that for voters secret ballot is a privilege that can be exercised (Case K 9/11 (2011) (Pol)), however in some cases applying the linguistic (grammatical) interpretation may lead to the conclusion that the secret ballot lies within the sphere of voter’s obligations (see Garlicki 155; Case 76/2011 (2011) (Slovk). Nevertheless, voting openly does not involve any negative legal consequences. Also, voluntarily informing other people of one’s electoral decision, regardless of whether it takes place before or after the election, does not infringe the principle of secret ballot. For state authorities, secrecy of voting requires the obligation of ensuring a polling station organization that enables voting in such a manner that nobody knows an individual voter’s decision (Case K 9/11 (2011) (Pol)).
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