The Voter Secrecy Issue in Washington State – White v Skagit

In the White v Skagit legal decision in 2015 ballots, ballot images, and any similar records were exempted from public records requests based on a voter secrecy issue. In certain limited cases, public access to these records opens up the possibility of knowing how a limited number of individuals voted. For this reason the court determined that the public cannot have access to any of these types of records barring a court order.

History Behind Voter Secrecy

According to University of Virginia’s Voting Viva Voice, voting originally took place as a public event. At the time no one seemed to have any issues with this. That changed, it seems, due to awareness that political operatives took advantage of this public display of voting. “Seeing or hearing the individual votes as they were given revealed the tide of [the] partisan battle. Political operatives [when necessary] could [then] figure out what might yet be done to alter that outcome in the remainder of the day.”

When viewed in its historical context it seems safe to say that the crafters of the voter secrecy provision in the Washington State Constitution in the late 1800s specifically intended it to limit manipulation of votes on the day of the election. ARTICLE 6 SECTION 6 states, “All elections shall be by ballot. The legislature shall provide for such method of voting as will secure to every elector absolute secrecy in preparing and depositing his ballot.”

Why Voter Secrecy in Preparing and Depositing?

Notice the specific mention of voter secrecy in preparing and depositing of the ballot. The reason for the secrecy of preparing the ballot seems obvious. But the secrecy of depositing needs to be put in historical context to better understand its meaning. At one point in time in the evolving of the election process clearly marked party tickets were used.

Although more discreet than a voice vote, this still allowed for observers to know the party affiliation of the voter depositing the ticket. To prevent this identification a generic ballot for all voters was implemented without any markings of political affiliation. Hence the reason for the specific mention in the constitutional provision for secrecy in depositing of a ballot. This meant only generic ballots could be used so observers wouldn’t know the voter’s political affiliation when depositing their ballot.

White v Skagit

In White v Skagit, the court decision to restrict access to the records in question seems to be flawed, or at best unbalanced when looking into the history of the voter secrecy provision it hinges upon. Why in the provision the specific mention to secrecy of preparing and depositing the ballot? Obviously it wasn’t meant to be a blanket secrecy. Otherwise it would have read something like “…as will secure to every elector absolute ballot secrecy before, during and after the election.”

But as it reads it’s evident It was getting at something other than blanket secrecy. And based upon the history the most obvious reading is to curb manipulation of an election on the day of the election, which until recently, was a one day event. What will happen by making it harder for political operatives to track election progress during the day? It will in turn make it harder for them to keep track of voting and know how to manipulate the election in their favor as it moves toward its conclusion.

However, as the courts appear to have done, it seems a stretch to interpret the text in the constitution to mean voter secrecy not only on election day, but as long as the ballots are preserved. As argued above, the text doesn’t provide for a blanket secrecy. It simply refers to secrecy in regards to the specific aspects of preparing and depositing of a ballet in the voting process on election day. If the concern was to curb election day manipulation, this wording does that. And arguably, that’s all it was meant to do.

Voter Secrecy Observations

It seems justifiable to say that grounds are insufficient at best for withholding from the public the records in question after the election is over. And when considering how withholding public access to ballots prevents meaningful transparency in elections, it could also be argued that it infringes on the public’s right to free and fair elections.

How can there be free and fair elections without a mechanism for accountability? And how can such a mechanism exist without meaningful transparency for the public? And what justifies protecting a “so called” constitutional right of blanket voter secrecy that can be argued isn’t even articulated in the constitution especially when holding to such a position is at the expense of meaningful transparency to the public? Where does the priority lie, in unarticulated voter secrecy, or in transparency for articulated free and fair elections?

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