Are Mail-In Ballots “Secret”? Arizona Court of Appeals Says Yes

By William Harren. 

In 2020, litigation over mail-in voting exploded across the country.  Concern about COVID-19 forced many voters to stay home and resulted in a record number of absentee ballots. Lawsuits began to percolate as Republicans and Democrats jockeyed for position in the new voting landscape.

During the pandemic, Arizona became a battleground for controversy over mail-in ballots. First, Democrats sued the state for “ballot-harvesting,” successfully enjoining an Arizona law that required mail-in ballots to be delivered by family members or caregivers. Then, following the election, Republicans sought to decertify the election, alleging widespread voter fraud primarily from mail-in ballots. 

For a while disputes over mail-in ballots appeared to cool off, but midterm elections reinvigorated the controversy. The recent case of Arizona Republican Party v. Fontes provides a notable example. 

Arizona Republican Party v. Fontes

Article 7, section 1 of the Arizona Constitution, also known as “the Secrecy Clause,” states that: “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.” In a petition before the Arizona Court of Appeals, the Arizona Republican Party argued that Arizona’s current mail-in ballot system fails to meet these constitutional requirements.

Mail-in voting is not a new phenomenon in Arizona. However, before 1991, mail-in voters needed to be in the presence of an authorized officer who would administer an oath before marking and sealing the ballot without seeing how the person voted. According to the Republican Party, this authorized official created a restricted zone around voters, protecting them from outside influence, and preserving “secrecy” as required by the Constitution. 

To support this counter-intuitive definition of secrecy, the plaintiffs cited a 1992 First Amendment case, Burson v. Freeman, where the U.S. Supreme Court upheld a Tennessee law prohibiting electioneering near a polling entrance. In the Court’s words, “The only way to preserve the secrecy of the ballot is to limit access to the area around the voter.” Applying this definition of secrecy, the Arizona Constitution would require that all absentee votes be cast from a similarly restricted zone. 

The Court of Appeals, however, declined to apply this definition of secrecy in favor of the Arizona Constitution’s plain meaning. Citing to the New Websterian Dictionary, the court defined the word  “preserve” as “to keep from injury; defend; uphold; save; keep in a sound state,” and the word “secrecy” as “the state or quality of being hidden; concealment[.]” 

Arizona’s voting laws already require an absentee voter to “mark his ballot in such a manner that his vote cannot be seen” and to fold the ballot “so as to conceal the vote.” Under the court’s common-sense definition of “secrecy,” the law satisfied the constitutional requirement. No additional restricted zone is needed. 

End of the Story?

Plaintiff’s appeal may be stalled; however, the parties have filed a petition for review with the Arizona Supreme Court. If the Supreme court denies review, the lawsuit is finished. But if the Court grants the plaintiff’s petition, a date will be scheduled for oral arguments and the parties will have a final chance to argue their case.

It’s unclear, however, that either courts’ decision will resolve the debate over mail-in ballots. 

Outside of Arizona, a lawsuit in Pennsylvania appears likely to reach the opposite conclusion. While Arizona’s mail-in voting system has been in place since 1991, Pennsylvania’s system is relatively new, and its Constitution contains more detailed requirements for voting. As a result, a Pennsylvania appeals court found the state’s new absentee voting system unconstitutional. Like the decision in  Fontes, the Pennsylvania court’s decision is currently awaiting additional review.

If nothing else, these cases demonstrate the ongoing relevance of issues surrounding mail-in ballots. As many as 55% of voters in 2022 relied on early voting or mail-in voting, compared to 2018, where only 40% of voters relied on alternative methods. Eight states now automatically provide voters with a mail-in ballot and it seems likely that mail-in voting will remain popular.

As these voting practices continue to expand, Americans from both political parties will strive to preserve our voting system’s integrity. Stay tuned. 

"Everett, WA - USA / 07/30/2020: Dropping Mail in Ballot into mail box" by ShebleyCL is licensed under CC BY 2.0.

By William Harren

J.D. Candidate, 2024

William Harren is a 2L Staff Writer at the Arizona State Law Journal. He grew up in Wasilla, Alaska, before moving south in search of higher education and sunshine. After completing a degree in Philosophy, he worked various odd jobs and spent a year abroad before joining the Americorps in Arizona. After graduation, he hopes to work in litigation and criminal investigations.