California’s Constitution, in Article II, Section 7, requires that voting be secret. What does that mean?
This constitutional requirement is also captured in the Voter Bill of Rights, which is found in Government Code Section 2300. The Voter Bill of Rights, which must be made available to the public, must convey specified information, including “(4) You have the right to cast a secret ballot free from intimidation.”
In addition, the Secretary of State’s website states, “The right to cast a secret ballot without anyone bothering you or telling you how to vote.”
Interestingly, for the last half a dozen years, the issue of “ballot selfies” has been a topic of discussion in state legislatures around the country. In other, if you have a state constitutional right to cast a secret ballot, should a voter in this state be able to photograph their ballot and post that photo (showing how they voted) on social media?
Of course, the right to cast a secret ballot in this country has been around for the past century. The notion is that voting in secret protects voters against possible threats of coercion or bribery. According to the National Conference of State Legislatures, more than 40 states have constitutional provisions that guarantee secrecy in voting. The other states have statutory provisions to protect secrecy in voting.
The first state to attempt to ban selfies of a voter’s ballot was New Hampshire in 2014, but a federal court ruled the state law to be a violation of the federal First Amendment’s right to free speech and that the ballot selfie in constitutionally protected political speech.
California enacted AB 1494 in the 2016 Session, which repealed a 125-year old law barring voters from showing people their marked ballots. It specifies that “a voter may voluntarily disclose how he or she voted if that voluntary act does not violate any other law.”
In addition, over thirty states, according to the National Conference of State Legislatures, allow some form of voting being transmitted by email, fax, or internet portal, primarily for overseas or military voters. Most of these states actually require the voters to sign a waiver of their right to a secret ballot.
Finally, states have enacted exemptions from their secret voting laws for specified instances, such as for persons with disabilities to request assistance in the voting booth to complete their ballot.
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