The Volokh Conspiracy

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Mail-In Voting Doesn't Violate Arizona Constitution's "Secrecy in Voting" Requirement


From Arizona Republican Party v. Fontes, decided today by the Arizona Court of Appeals (opinion by Judge Cynthia J. Bailey, joined by Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass):

The Arizona Republican Party ("AZGOP") and its chairwoman Kelli Ward … filed this case against the Arizona Secretary of State … and election officials in each of Arizona's fifteen counties …, alleging Arizona's mail-in voting laws violate Article 7, Section 1 of the Arizona Constitution ("the Secrecy Clause"). The Secrecy Clause states, "All elections by the people shall be by ballot, or by such other method as may be prescribed by law; Provided that secrecy in voting shall be preserved." …

[Plaintiffs] conced[e] that voting in person before election day may be constitutional, and argued instead that mail-in voting violates the Secrecy Clause only because it takes place without the requirements that "(1) an official be present when absentee voters cast their ballots … and (2) that the official then watch[es] the voter enclose and seal the ballot in an envelope." …

Though Plaintiffs presented evidence to the superior court of alleged mail-in voting secrecy protection violations, in their briefing on appeal and at oral argument before this court, they concede their challenge is only a facial challenge. To succeed on their facial challenge, Plaintiffs "must establish that no set of circumstances exists under which the [statutes] would be valid." …

Plaintiffs argue Arizona's mail-in voting laws violate the Secrecy Clause because the laws do not require officials to secure a restricted zone around a voter who fills in a mail-in ballot….

When the Arizona Constitution was adopted, the definitions of "secrecy" included "the state or quality of being hidden; concealment[.]" Secrecy, New Websterian Dictionary, 735 (1912). "Preserve" definitions included "to keep from injury; defend; uphold; save; keep in a sound state[.]" Preserve, New Websterian Dictionary, 646. Thus, the Secrecy Clause's meaning is clear: when providing for voting by ballot or any other method, the legislature must uphold voters' ability to conceal their choices. The constitution does not mandate any particular method for preserving secrecy in voting.

Arizona's mail-in voting laws preserve secrecy in voting by requiring voters to ensure they fill out their ballot in secret and seal the ballot in an envelope that does not disclose the voters' choices. Section 16-548(A) provides:

The early voter shall make and sign the affidavit and shall then mark his ballot in such a manner that his vote cannot be seen. The early voter shall fold the ballot, if a paper ballot, so as to conceal the vote and deposit the voted ballot in the envelope provided for that purpose, which shall be securely sealed and, together with the affidavit, delivered or mailed to the county recorder or other officer in charge of elections of the political subdivision in which the elector is registered or deposited by the voter or the voter's agent at any polling place in the county.

The election officer charged with preparing mail-in ballots must "[e]nsure that the ballot return envelopes are of a type that does not reveal the voter's selections or political party affiliation and that is tamper evident when properly sealed." And, when opening the envelope containing a mail-in ballot, election officials must "take out the ballot without unfolding it or permitting it to be opened or examined…." It is a class two misdemeanor for an election official to "[o]pen[ ] or permit[ ] the folded ballot of an elector … to be opened or examined previous to depositing it in the ballot box."

These statutes ensure that mail-in voters' choices are concealed by requiring voters to mark their ballot so their vote cannot be seen and then to securely seal it in an envelope that does not disclose their vote. After a voter does this, election officials cannot open the ballot to reveal the voter's selection. It must be deposited in the ballot box to be counted. At no point can the voter's identifying information on their ballot envelope be lawfully connected with their vote. These protections are adequate to ensure the preservation of secrecy in voting. The legislature is free to adopt the more stringent requirements urged by Plaintiffs, but it is not constitutionally required to do so….

Plaintiffs argue that though Arizona law preserves secrecy in voting at polling locations, § 16-1018 fails to preserve secrecy in mail-in voting. Plaintiffs contend that because mail-in voters may photograph their ballot and post it on the internet, Arizona laws do not preserve secrecy in voting. Plaintiffs point to § 16-515(G), which states, "Notwithstanding § 16-1018, a person may not take photographs or videos while within the seventy-five foot limit" around polling locations. Section 16-1018 makes it a class two misdemeanor for a person to "[s]how[ ] another voter's ballot to any person after it is prepared for voting in such a manner as to reveal the contents, except to an authorized person lawfully assisting the voter," but "[a] voter who makes available an image of the voter's own ballot by posting on the internet or in some other electronic medium is deemed to have consented to retransmittal of that image and that retransmittal does not constitute a violation of this section."

We do not read § 16-1018(A)(4) as failing to preserve secrecy in mail-in voting. Section 16-1018(A)(4) merely provides a defense to the crime of showing another's ballot to any person after it is prepared. The defense applies when a person shows another voter's ballot if the voter who filled out that ballot posted the image online. And the legislature's decision not to prohibit a mail-in voter from showing her own marked ballot to another, whether in person or online, does not violate the Secrecy Clause because the legislature has commanded mail-in voters to "mark [her] ballot in such a manner that [her] vote cannot be seen." …