The Australian ballot comes to Wyoming

In recent months, dozens of Wyoming citizens from across the state have been denied access to public records. Many of these denials have included a reference to Article 6, Section 11 of the Wyoming Constitution. Such widespread public interest merits a closer look.

Section 11 begins, “All elections shall be by ballot.” Perhaps surprisingly, when this language was ratified in 1889, ballot elections were a recent innovation. As late as 1892, citizens in West Virginia rejected new ballot requirements and demanded a return to the voice vote.

Paper ballots, in fact, were at the heart of election reforms across the globe. In 1856, Australia first enacted the so-called secret ballot. As similar laws were enacted from London to Cheyenne they were known as “the Australian ballot.” These reforms were designed to counteract the widespread practice of voter intimidation. 

Robber barons, bosses, and corrupt politicians had learned to game the system. It was common to demand that employees or tenants vote a certain way, under threat of being fired or evicted. Observers at the polling place would enforce this intimidation either by eavesdropping on their voice vote or by observing which ballot was cast into the box.

At that time, ballots were printed by political parties and given to voters in advance of election day. They were easily identifiable by shape and color. So, it was nearly impossible to vote free of external pressures. The Australian ballot countered this with four specific reforms. 

• First, every ballot listed all candidates running for office, and not only one party’s slate.
• Second, instead of each special interest printing its own ballot, the Australian ballot was standardized and printed at public expense. 
• Third, ballots could not be distributed outside of the polling place, or before voting day. Thus, fraudsters could not pressure voters to mark ballots before coming to vote. 
• Fourth, polling places supplied a privacy booth to prevent fraudsters from observing how voters marked the ballot.

After the presidential election of 1884, all American states rapidly adopted the Australian ballot. Kentucky was the last to implement it in 1891. Wyoming’s constitution was ratified during this time and Article 6, Section 11 enumerated all four elements of the Australian ballot.

It says, (1) “all candidates… shall be printed on the same ballot,” (2) “at public expense,” (3) “and on election day [the ballot shall] be delivered to the voters within the polling place,” and (4) “All voters shall be guaranteed absolute privacy in the preparation of their ballots.”

Provisions one and two are relatively non-controversial. But early voting conflicts with our third provision. And the fourth provision recently has been stretched beyond recognition. 

“Preparation” is what happens before the ballot is cast. That is where privacy is guaranteed. But public record requests to look at ballots after they have been cast are being denied based on this sentence: “All voters shall be guaranteed absolute privacy in the preparation of their ballots, and the secrecy of the ballot shall be made compulsory.” 

The secrecy guaranteed here is in the voter’s preparation and in the ballot itself. It is a guarantee that anyone who looks at the ballot will not be able to identify the voter. Secrecy is secured not by hiding ballots from some while allowing others to inspect them. Rather, it is secured by preventing anyone who looks at them from being able to identify a voter. 

Monique Meese

So, who is saying otherwise? The former communications director for the secretary of state, Monique Meese, testified before the Corporations Committee (August 25, 2022): “I should read this sentence as broadly as I can because I want to protect my office from someone who is upset or might have a claim of action against my office for giving out information that’s constitutionally protected.” 

Two things should be said about this claim. First, the job of the Secretary of State’s office is faithfully to interpret the constitution. It is not to protect his office by stretching the words of the constitution “as broadly as I can.”

Second, the constitution demands that the ballot itself be made secret. If the Secretary’s office has not ensured that the ballot is secret so that anyone—from the county clerk to the janitor—might be able to identify the voter, the secretary has failed in his constitutional duty. But if the secretary meets his constitutional obligation, no one can be identified. And so, no one can be “upset or …have a claim of action.”

For the entire history of Wyoming millions of ballots have been inspected by clerks, election judges, and election observers. Every single one of them is a direct refutation of Meese’s novel interpretation. After 133 years of constitutional precedent, even statutory enactment of this interpretation would be hard-pressed to survive a constitutional challenge. Much less should it survive as a bureaucratic dictum.

Post Script:

• The Reporters' Committee for Freedom of the Press has done a state-by-state analysis of which election records are publicly available. Colorado, Georgia, Texas, Vermont, and West Virginia explicitly permit public inspection of ballots. Many other states have not addressed the issue. The report concludes: "All election records of a county [in Wyoming] are public unless specifically exempted."
• Texas attorney general, Ken Paxton, issued an August 17, 2022 opinion stipulating that both legislators and the general public have the right to inspect secret ballots.
• To varying degrees, states and counties throughout the United States have already set precedents by treating paper ballots, ballot images, and cast vote records as public records. In one example, Maricopa County, Arizona made 2.1 million available for public inspection in 2021.