Alaska R. Evid. 507 commentary

Every person has a privilege to refuse to disclose the tenor

of his vote at a political election conducted by secret ballot

unless the vote was cast illegally.

Secrecy in voting is an essential aspect of effective

democratic government, insuring free exercise of the franchise

and fairness in elections. Secrecy after the ballot has been cast

is as essential as secrecy in the act of voting. Nutting, Freedom

of Silence: Constitutional Protection Against Governmental

Intrusion in Political Affairs, 47 Mich. L. Rev. 181, 191

(1948). Consequently a privilege has long been recognized on

the part of a voter to decline to disclose how he voted.

Required disclosure would be the exercise of “a kind of

inquisitorial power unknown to the principles of our

government and constitution, and might be highly injurious to

the suffrages of a free people, as well as tending to create

cabals and disturbances between contending parties in popular

elections.” Johnson v. Charleston, 1 Bay 441, 442 (S.C. Sup.

Ct. 1795).

The exception for illegally cast votes is a common one

under both statutes and case law, Nutting, supra, at 192; 8

Wigmore § 2214, at 163. The policy considerations which

underlie the privilege are not applicable to the illegal voter.

However, nothing in the exception purports to foreclose an illegal voter from invoking the privilege against self-incrimination under appropriate circumstances.

For similar provisions, see Uniform Rule of Evidence 31;

Cal. Evid. Code § 1050 (West); Kan. Civ. Pro. Stat. Ann.

§§ 60-431 (Vernon); New Jersey Evidence Rule 31.