Why Absentee Voting in the Military Should Be Kept Secret

Q&A with ACLU Voting Rights Project Director Laughlin McDonald
Why Absentee Voting in the Military Should Be Kept Secret

Q. Why a secret ballot?
A. Voting is a fundamental right, and the right to cast a secret ballot is part of that right (a right recognized and guaranteed by state law). A secret ballot protects against two things: undue influence and manipulation in casting a vote, and retaliation because of how one voted. No one should ever be asked to waive the fundamental right to a secret ballot. The government has no legitimate interest in compromising the secret nature of the ballot.

I'm reminded of the time in American history during the aftermath of Reconstruction following the Civil War when blacks who were given the right to vote by the Fourteenth and Fifteenth Amendments were made to vote in public under the watchful eyes of their former masters. If the freedmen didn't vote the right way, they were often kicked off the land or they were visited by the Ku Klux Klan.

Q. But under the proposed system, wouldn't waiving the secrecy of the ballot be voluntary?
A. Even if voluntary, the problems of manipulation and retaliation would still be present. Those of us who are not in the military cast a secret ballot as matter of course. It seems very unfair, and it raises questions about equal protection, to subject those in the military to the possibility of manipulation and retaliation. That is hardly an appropriate way to treat those who are on the frontlines protecting America and American democracy.

One also has to question how voluntary the waiver of a secret ballot would in fact be by people in the military. The military is the most authoritarian institution in American life. People are subject to a chain of command, they are under constant observation, and their every activity is directed and controlled by their superiors. You would have to be naive not to appreciate that there is a very real danger of manipulation and retaliation inherent in providing for waiver of the right to cast a secret ballot by people in the military.

The confidence of the American people in the fairness of our elections was badly shaken by the fiasco in Florida in 2000. We don't need to undermine that confidence even further by giving the military chain of command an opportunity to manipulate the vote of people in service.

Q. People with disabilities who need assistance in voting waive the right to a secret ballot. So what's the big deal?
A. Notably, when Congress amended and extended the Voting Rights Act in 1982, it provided that any voter who needed it ""may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or agent of the voter's union."" 42 U.S.C. § 1973aa-6. Congress enacted that provision because it was well aware of the potential for influencing the vote and retaliation that was implicit in allowing a voter's boss or union to know how they in fact voted. No less can be said of allowing the chain of command in the military to know how military personnel have voted.

The new voting technology allows voters with disabilities to vote unassisted. There is no reason to require such voters to waive the right to a secret ballot.

Q. But people are always free to say how they voted. So what's the big deal?
A. First, they don't have to reveal how they voted. Second, even if they ostensibly reveal how they voted, that doesn't mean that they in fact voted that way. The secrecy of the vote always remains protected. That wouldn't be true under the proposed system of absentee voting by people in the military. They way they voted would be in fact be disclosed.