Sunday, November 15, 2020
Assume you are a witness at trial and asked whether you voted for Biden or Trump (or Kanye). Would you have to answer the question, assuming it was somehow relevant to the trial being held? In most states, the answer is "no." As Peter Nicolas writes in Electoral Evidence, 69 Ala. L. Rev. 109 (2017),
Today, twenty U.S. states and two U.S. territories, by statute or codified rule of evidence, recognize such a political vote privilege. Another twenty-one states have judicial decisions on the books recognizing such a privilege, all (or nearly all) of which have survived the codification of rules of evidence in those states. Of the remaining nine states, courts in two, Arizona and Utah, have explicitly left the issue open, while the other seven--Florida, Maryland, New Hampshire, South Carolina, Vermont, Virginia, and Washington-- have no cases or statutes addressing the issue. However, seven of these nine states have constitutional provisions guaranteeing a right to a secret ballot, and the remaining two states have statutes guaranteeing the same from which courts could derive a political vote privilege, in accordance with the many other states that have done so. In addition, five of the nine states have a rule acknowledging the power of courts to recognize common law privileges that could similarly result in the recognition of such a privilege. It thus seems likely that if the issue were addressed by courts in the remaining states, the result would be unanimous (or nearly so) recognition of the privilege nationwide.
An analogous privilege likely exists at the federal level and governs when federal causes of action are involved. When the Federal Rules of Evidence were originally proposed, they included a series of specific evidentiary privileges, including a political vote privilege with an exception for illegally cast votes. In response to overwhelmingly negative criticism of the specific privileges proposed to be included in and excluded from the Federal Rules of Evidence--albeit none directed at the political vote privilege itself--Congress substituted in their place a general rule directing courts to determine the existence and scope of federal privileges by way of “[t]he common law--as interpreted by United States courts in the light of *reason and experience.” Applying this standard, the only federal court to consider the matter to date has recognized a federal common law political vote privilege.
For example, Alabama Rule of Evidence 506 states that
(a) General rule of privilege. Every person has a privilege to refuse to disclose the tenor of such person’s vote at a political election conducted by secret ballot.
(b) Exceptions. This privilege does not apply if the vote was cast illegally or if disclosure is compellable pursuant to election laws.
And Nebraska Rule of Evidence 27-507 states that
Every person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot unless the vote was cast illegally.