RULE 506. POLITICAL VOTE
(a) General Rule of Privilege. Every person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot.
(b) Exceptions. This privilege does not apply if the court finds that the vote was cast illegally.
EXPLANATORY NOTE
Rule 506 is taken from the Uniform Rules of Evidence (1974) and promotes the right of secrecy of the ballot which is secured by 129 of the Constitution of North Dakota.
Subdivision (a) (1) states the general rule of privilege. Because the privilege to refuse to disclose the tenor of a secret ballot confers a benefit to the institutions of government as well as to the individual elector, it has been argued that, as a matter of public policy, a party to litigation should be allowed to claim error if the privilege is denied. See, e.g., the dissenting opinion of Christianson, C.J., in Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134 at 142 (1937).
Despite this argument, it has generally been accepted that the rule is one of personal privilege, rather than one of exclusion. The distinction is material: As a personal privilege, the protection conferred may be waived by the holder; furthermore, it may be claimed only by the elector. Rule 506 follows the generally accepted theory and grants a personal privilege to refuse to disclose the tenor of one's ballot. This is in accord with the case law of North Dakota. See Wehrung v. Ideal School District No. 10, 78 N.W.2d 68 (N.D. 1956); Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134 (1937).
Of course, if the privilege is erroneously granted, the adverse party may object in his capacity as a litigant, but this is a claim apart from those made by the holder of the privilege.
Subdivision (b) states that if the vote was cast illegally, or if the court finds that disclosure is proper pursuant to the election laws of this state, then this privilege does not apply. This reaffirms the practice that has been developed and followed in this State. See Torkelson v. Byrne, supra.
SOURCES: Minutes of Joint Procedure Committee: January 29, 1976, page 7. Rule 506, Uniform Rules of Evidence (1974).