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Effective Date: 3/1/2014

(a) General Rule of Privilege. An individual has a privilege to refuse to disclose the tenor of the individual's vote at a political election conducted by secret ballot.

(b) Exceptions. This privilege under N.D.R.Ev. 506(a) does not apply if the court finds that the vote was cast illegally or determines that disclosure should be compelled under the election laws of the state.

Rule 506 was amended, effective March 1, 2014.

Rule 506 is taken from the Uniform Rules of Evidence and promotes the right of secrecy of the ballot which is secured by Article 2, § 1 of the Constitution of North Dakota.

Subdivision (a) 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 the 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.

Rule 506 was amended, effective March 1, 2014, to follow the 1999 amendments to Uniform Rule of Evidence 506. Gender specific language and the term "person" have been replaced with the neutral term "individual," which is intended to mean a human being.

SOURCES: Joint Procedure Committee Minutes of April 25-26, 2013, page 33; January 29, 1976, page 7. Rule 506, Uniform Rules of Evidence.

Effective Date Obsolete Date
03/01/2014 View
01/29/1976 03/01/2014 View