60 Pages Posted: 23 Mar 2017 Last revised: 9 Mar 2018
Date Written: March 21, 2017
Each year, millions of Americans cast votes for specific candidates or on specific ballot measures. Each such vote generates potential “electoral evidence” the admissibility of which may be the subject of dispute in subsequent litigation. The evidence may take various forms, including the marked ballot itself, a voter’s testimony regarding her vote, or her written or oral statements regarding her vote.
Electoral evidence is most commonly offered in litigation over the election outcome itself, with the parties seeking to determine how certain individuals voted to resolve a close election. However, its potential relevance is not limited to such proceedings. It may also be substantively relevant in a case in which the voter is alleged to have discriminated against someone, or to prove potential juror or witness bias against a party. While election contests for specific candidates only provide insight into a voter’s general political leanings that is only marginally relevant to prove discriminatory purpose or bias in most instances, votes cast in recent years on gay and transgender rights, affirmative action, religious freedom, tort reform, and abortion provide insight into a voter’s views about discrete categories of persons that is far more probative of such matters.
The admissibility of electoral evidence has been given piecemeal consideration in judicial opinions, but has not received comprehensive attention in any judicial opinion or in the scholarly literature. This Article is the first comprehensive examination of the evidentiary issues that arise when a party seeks to offer electoral evidence in judicial proceedings. It identifies three dangers associated with admitting electoral evidence: its trustworthiness; the individual and societal interests in protecting ballot secrecy; and the risk of unfair prejudice. It demonstrates that these dangers are addressed in a fragmentary and incomplete fashion by existing evidentiary rules. Relying on social science research about the veracity of voters in recounting their votes as well as the history behind the development of the right to ballot secrecy, this Article concludes that courts and policymakers should be cautious about deeming electoral evidence admissible and should allow it only in limited circumstances.
Keywords: ballot, election law, unfair prejudice, religious freedom, affirmative action, abortion, transgender, lesbian, gay, discrimination, ballot initiative, bias, ballot secrecy, best evidence rule, hearsay, testimonial privilege, political vote privilege, self-incrimination, voting, elections, evidence
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