Rule Text
Every person has a privilege to refuse to disclose the tenor of the person’s vote at a political election conducted by secret ballot unless the vote was cast illegally.
Amendment history: (Added by SCO 364 effective August 1, 1979; amended by SCO 1522 effective October 15, 2003)
Committee Notes
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. Secrecy in voting is an essential aspect of effective democratic government, insuring free exercise of the franchise and fairness in elections. Secrecy after the ballot has been cast is as essential as secrecy in the act of voting. Nutting, Freedom of Silence: Constitutional Protection Against Governmental Intrusion in Political Affairs, 47 Mich. L. Rev. 181, 191
(1948) . Consequently a privilege has long been recognized on the part of a voter to decline to disclose how he voted. Required disclosure would be the exercise of “a kind of inquisitorial power unknown to the principles of our government and constitution, and might be highly injurious to the suffrages of a free people, as well as tending to create cabals and disturbances between contending parties in popular elections.” Johnson v. Charleston, 1 Bay 441, 442 (S.C. Sup. Ct. 1795). The exception for illegally cast votes is a common one under both statutes and case law, Nutting, supra, at 192; 8 Wigmore § 2214, at 163. The policy considerations which underlie the privilege are not applicable to the illegal voter. However, nothing in the exception purports to foreclose an illegal voter from invoking the privilege against self-incrimination under appropriate circumstances. For similar provisions, see Uniform Rule of Evidence 31; Cal. Evid. Code § 1050 (West); Kan. Civ. Pro. Stat. Ann. §§ 60-431 (Vernon); New Jersey Evidence Rule 31.
