A.  Introduction

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).

E.  Contemporary Issues Related to the Secret Ballot

F.  Conclusion

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)).