The Verdict of a Juryman

The first parliamentary elections held in Australia, for the Legislative Council of New South Wales in 1843, were conducted under the British system, which meant in public. They were mostly held in pubs. Nominations were made outside on the street. A voter wrote his candidate's name on a piece of paper, signed it, handed it to an officer, and then said out loud who he had voted for.

Only men who owned or rented substantial property could vote at all, which did nothing to calm proceedings. Candidates supplied free food and drink to the men whose votes they wanted and to the men who had already given them. Running totals were posted through the day to crowds that got less manageable as the totals went up. Two men were killed.

That is what the secret ballot was invented to replace, and it was invented in a hurry.

Melbourne, 1856

Victoria's Electoral Act passed its parliament on 13 March 1856 and received the Governor's assent on the 19th. It was the first law anywhere in the world to provide for voting in secret.

The mechanism was a government printed paper listing every candidate. The voter crossed out the names of the candidates he did not want, folded the paper so that the marks could not be seen, and put it into a box in front of the polling officers. Three things had changed at once: the state printed the ballot rather than the parties, every candidate appeared on it, and nobody watching could tell what had been done to it.

South Australia passed a similar law two weeks later, on 2 April, and its registrar, William Boothby, made one alteration. Instead of striking out the men you were against, you put a cross beside the man you were for.

That sounds like nothing. It is the version that spread. The Australian ballot, as the rest of the world came to call it, is Boothby's, and the distinction it draws is not merely clerical: a ballot of exclusions is a paper about your enemies, and a ballot of crosses is a paper about your choice. Britain adopted the system in 1872. The United States began taking it up state by state after the presidential election of 1884.

The objection

In 1861, with the Australian colonies already voting this way and the British campaign for the ballot at full strength, John Stuart Mill published Considerations on Representative Government and came out against it.

His argument is not the one usually attributed to opponents of the ballot, which is that secrecy is cowardly. It is a claim about what a vote is.

"The voter is under an absolute moral obligation," Mill wrote, "to consider the interest of the public, not his private advantage, and give his vote, to the best of his judgment, exactly as he would be bound to do if he were the sole voter, and the election depended upon him alone."

From that he draws the consequence. "The duty of voting, like any other public duty, should be performed under the eye and criticism of the public; every one of whom has not only an interest in its performance, but a good title to consider himself wronged if it is performed otherwise than honestly and carefully."

The heart of it is a distinction between a right and a trust. A right is something you hold for your own benefit and may dispose of as you please. Mill's test is uncomfortable and it is meant to be. "If it is a right, if it belongs to the voter for his own sake, on what ground can we blame him for selling it, or using it to recommend himself to any one whom it is his interest to please?"

You cannot condemn vote-buying, in other words, if the vote is the voter's own property. And so it is not. "His vote is not a thing in which he has an option; it has no more to do with his personal wishes than the verdict of a juryman. It is strictly a matter of duty."

Mill's worry was that secrecy would teach people the opposite lesson. Told that the vote belongs to them and is nobody else's business, they would come to use it as they use anything else that belongs to them, and the habit of thinking about the public good while voting would decay.

Where he gave the argument away

The reason to read the chapter rather than the summary is that Mill states the case against himself, fully, and then declines to be moved by it.

He accepts that the argument for the ballot holds "as long as one person is sufficiently the superior of another to think himself entitled to dictate his vote". He accepts that where a voter is subject to that kind of pressure, silence or evasion will be taken as proof of disobedience, so refusing to say is no protection at all.

And he writes this: "It may unquestionably be the fact, that if we attempt, by publicity, to make the voter responsible to the public for his vote, he will practically be made responsible for it to some powerful individual, whose interest is more opposed to the general interest of the community than that of the voter himself would be, if, by the shield of secrecy, he were released from responsibility altogether."

That is the whole case for the secret ballot, written by its most distinguished opponent. Mill's position rests entirely on a judgement of fact: that in the England of 1861, landlords and employers no longer had that kind of hold over tenants and workmen, so the exceptional case did not apply.

He was wrong about the fact. Eleven years later Parliament passed the Ballot Act.

What survived

The interesting thing is that Mill's principle was not defeated, only the arrangement he built on it. Nobody now argues that a vote is private property to be sold. The prohibition on selling it is universal, and it is a strange prohibition unless the vote is exactly what Mill said it was: a power over other people, held in trust, which is why you may not put a price on it.

So the ballot box concedes his argument and hides the evidence. You are required to vote as a trustee and permitted to vote as a proprietor, and the state has arranged things so that nobody can tell which you did.

South Australia's registrar was not thinking about any of this. He looked at a paper on which a man had to strike out the names of everyone he was against, in a colony where those men were his neighbours, and moved the mark to the other side of the ledger.

Sources

• Museum of Australian Democracy at Old Parliament House, "What is the secret ballot?" (the definition and mechanics of a secret ballot; the 1843 Legislative Council elections in New South Wales held under British open voting, mostly in pubs, with nominations made outside, voters writing a candidate's name, signing it, handing it to an officer and saying it aloud; the property qualification; the intimidation and bribery through free food and drink; the hourly counts posted to unruly crowds and the two men killed; the first modern secret ballot in Victoria in 1856; and the South Australian alteration of marking a cross against a candidate's name rather than crossing out unwanted names, which is the version known as the Australian ballot).
• John Stuart Mill, "Considerations on Representative Government, Chapter X, Of the Mode of Voting", 1861 (the absolute moral obligation on the voter to consider the public interest as though the election depended on him alone; the consequence that the duty of voting should be performed under the eye and criticism of the public; the distinction between a right and a trust and the challenge about selling a vote; the comparison with the verdict of a juryman; the concession that the argument for the ballot holds as long as one person is sufficiently the superior of another to think himself entitled to dictate his vote; the observation that silence or evasion will be read as disobedience; and the admission that publicity may make the voter answerable to a powerful individual rather than to the public).
• Documenting a Democracy, National Archives of Australia, "Electoral Act 1856 (Vic)" (the Act itself, its passage on 13 March 1856 and assent on 19 March, the government supplied ballot paper listing the candidates, and the requirement to strike out unwanted names, fold the paper and place it in the box in view of the polling officers).
• John H. Wigmore, "The Australian Ballot System as Embodied in the Legislation of Various Countries", Boston, 1889 (a contemporary survey, written while American states were adopting the system, of the Australian legislation and of the statutes that copied it).