arrowSection 5.2 - Absentee & At-Home Voting

This topic is monitored by Moritz Law Professor Daniel Tokaji

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Prosecution Trumps Ballot Secrecy

In a case of election tampering, the Ohio Supreme Court ruled that the requirement of ballot secrecy does not bar the use of the ballots as evidence in a criminal trial to prove the misconduct.

As alleged in the indictment, the case involved the abuse of absentee ballots of nursing home residents. During the 2000 presidential election, two election board employees, one Democrat and the other Republican, went to the nursing home to assist the residents, but the Republican allegedly filled out several ballots in favor of Bush, even though the residents wished to vote for Gore. In an effort to defend against the charges of ballot tampering and election misconduct, the accused employee filed a motion to suppress the ballots on the ground that they must remain secret. The Ohio Supreme Court unanimously rejected this motion. State v. Jackson, 102 Ohio St.3d 380 (July 14, 2004).

While recognizing the traditional importance of maintaining ballot secrecy, the court's reasoning that the use of ballots to prove election fraud is consistent with, even conducive of, this policy. Quoting a century-old decision of the Louisiana Supreme Court, the Ohio high court stated:

"The secrecy of the ballot is desired simply as a means towards the purity of the election. To violate that secrecy, therefore, for the purpose of punishing those who may have committed a fraud in the election, is not to go counter to that policy but strictly in line with it."

Id. at 386-87, quoting State ex rel. Cassidy v. Baker, 135 La. 92, 64 So. 993 (1914). The Ohio Supreme Court also cited longstanding decisions from the supreme courts of Massachusetts and Illinois reaching the same result. Commonwealth v. Ryan, 157 Mass. 403, 32 N.E. 349 (1892); People v. Harrison, 384 Ill. 201, 51 N.E.2d 172 (1943). Thus, the Ohio Supreme Court announced categorically: "the secret ballot rule does not preclude the lawful seizure of a ballot for use as evidence of ballot tampering or other election-law violation." 102 Ohio St.3d at 387. The court evidently does not foresee any exceptions to this rule.

Posted: August 12, 2004