Secrecy Sleeves and the “Naked Ballot”

During the 2020 general election, at least 16 states will provide absentee voters with a “secrecy sleeve” in addition to an outer envelope, voter instructions and the ballot itself. A secrecy sleeve, often called an inner envelope or “privacy sleeve,” is a paper envelope (or, in some cases, a folded piece of paper) within which voters place their absentee ballots. The secrecy sleeve enclosing the ballot is then placed inside an outer envelope, sometimes called the return envelope. That outer envelope is then signed, sealed and delivered to election officials. The intended purpose of the secrecy sleeve is to protect a voter’s privacy, since it separates the ballot itself from a voter’s identity, which is listed on the outer envelope.

Unfortunately, some voters in secrecy sleeve states place their completed ballots directly inside the outer envelope, discarding the secrecy sleeve. When this happens, election officials will receive what is called a “naked ballot”—a voter’s ballot inside one sealed envelope rather than two. The Pennsylvania Supreme Court ruled recently that naked ballots will not be counted in the 2020 general election, which according to Philadelphia City Commissioner Lisa M. Deeley, could lead to the rejection of around 100,000 absentee votes in Pennsylvania alone.

Of the states that provide voters with a secrecy sleeve, some of them, like Pennsylvania, as well as Kentucky, New Hampshire and Ohio, will reject any naked ballots in 2020. Other states—such as Florida, Georgia and Washington—take the opposite approach, opting to count votes even if they are received without a secrecy sleeve. This post outlines the various rules and procedures of each relevant state.

Pennsylvania’s Secrecy Sleeve Requirement

On Sept. 17, the Pennsylvania Supreme Court ruled that absentee ballots returned without secrecy envelopes will be rejected and therefore not counted in the upcoming November election. In the June primary election, most counties in Pennsylvania, including Philadelphia, did not reject these ballots. According to one estimate, rejecting those ballots statewide would have amounted to approximately 11,000 fewer votes being counted for the primary, or more than 6 percent of all absentee votes.

Four days later, on Sept. 21, Philadelphia’s City Commissioner Lisa M. Deeley sent a letter to the state legislature, urging it to take immediate action in response to the court decision. Describing the secrecy envelope requirement as a “vestige of the past” that serves only to “disenfranchise well intentioned Pennsylvania voters,” Deeley noted that secrecy sleeves had lost relevance over time. Previously, secrecy sleeves protected the identifying information of voters because absentee ballots were counted in public view at individual polling locations. Today, however, absentee ballots are counted at a central location and through an “industrialized process,” Deeley explained, so their primary purpose has become obsolete.

In addition, Deeley wrote that removing the secrecy sleeve requirement would save thousands of dollars per year and speed up the counting process. Without any secrecy envelopes, for example, absentee votes could be removed from envelopes at 24,000 ballots an hour (double the current rate) and scanned at 32,000 ballots an hour. At that speed, Deeley wrote, “there is no opportunity to stop, or even slow down, and identify how an individual voted—anonymity is maintained.”

The Pennsylvania Supreme Court’s decision came less than two months before the general election, and less than a month before ballots began to be mailed to voters. Deeley estimated that if this ruling stands, and all absentee ballots arriving without sleeves are rejected, more than 100,000 ballots in Pennsylvania could be thrown out during the 2020 general election, based on estimates from previous elections and the massive increase in first-time absentee voters expected this year. Notably, the 2016 presidential election in Pennsylvania was decided by just over 44,000 votes. It is difficult to independently estimate the impact of the court decision because many counties (including Philadelphia) did not keep track of naked ballots during the primary. However, Mercer County and Lawrence County tracked naked ballots and found that 5 percent of all absentee mail ballots lacked a secrecy envelope. Unlike Philadelphia, Lawrence County did reject naked ballots during the primary, and the county’s elections director Ed Allison revealed that there were more rejected naked ballots than late ballots.

The Pennsylvania Supreme Court decision came down to whether or not the statutory language of Pennsylvania’s secrecy envelope provision was mandatory or directory. Justice Max Baer in the majority opinion concluded that the provision was indeed mandatory, and that “[w]hatever the wisdom of the requirement, the command that the mail-in elector utilize the secrecy envelope and leave it unblemished by identifying information is neither ambiguous nor unreasonable.” The decision also ruled on a number of other voting-related matters. It allowed ballots to be counted if received up to three days after Election Day, permitted the use of ballot drop boxes and blocked the use of partisan poll watchers in out-of-county locations. After the decision, Pennsylvania Republicans asked the U.S. Supreme Court to stay the holding. The decision has also sparked a flurry of voter education efforts from nonprofit organizations and political campaigns to highlight the now-required secrecy envelope.

The Use of Secrecy Sleeves in Other States

Outside of Pennsylvania, at least 15 states have laws requiring election officials to provide absentee voters with secrecy sleeves, but these states vary widely on whether ballots returned without a secrecy sleeve will be counted or rejected. In most cases, the legal necessity of secrecy sleeves depends on whether other required voter authentication tools—such as the place for voter signatures—are printed on the secrecy sleeve itself, rather than the outer sleeve. In states where the inner envelope doubles as a voter certification or identification document, the ballot will be rejected without one. In states where the inner envelope is just a secrecy sleeve used for a voter’s convenience, however, naked ballots are typically not rejected. Pennsylvania is a notable exception, as its secrecy sleeves do not contain any identifying information but are nonetheless required for a vote to be counted.

States That Reject Naked Ballots

Kentucky has a two-envelope system that requires a voter signature on both the inner yellow envelope and the outer white envelope. For the November election, the state will accept ballots if the inner envelope is not sealed, but Kentucky will reject ballots that are missing an inner envelope. Indeed, during the 2020 Kentucky primary, more than 32,000 ballots were rejected in total, including nearly 2,000 ballots rejected for missing inner envelopes.

Kentucky’s statute requires that voters be sent two envelopes for returning their mail-in absentee ballots. The outer envelope provides space for the voter’s signature, voting address, precinct number and witness signatures. A “detachable flap on the secrecy envelope” provides space for the same information.

New Hampshire absentee ballots contain an inner “affidavit envelope” that requires a signature. Without a signature, ballots will be rejected, suggesting that missing inner envelopes will result in the rejection of a voter’s absentee ballot.

New Hampshire’s relevant statute provides that the secretary of state shall provide absentee ballots, along with affidavit envelopes large enough to contain the ballots, which certify the voter’s eligibility. The affidavit leaves spaces for voters to print their name, city or town, and ward, and to include a signature.

A related New Hampshire statute states that “[t]he voter shall execute the affidavit on the envelope ... shall enclose and seal the inner envelope with the affidavit in an outer envelope ... [and] shall then endorse on the outer envelope the voter’s name, address, and voting place.”

In New Jersey, absentee voters receive an outer envelope, an inner envelope that requires a signature, a page with general information and the ballot itself. Because the inner envelope is needed for signature verification, a missing inner envelope will result in ballot rejection. For example, during the 2020 primary, nearly 2,000 of the roughly 35,000 ballots rejected in New Jersey were rejected for omitted signature certifications.

New Jersey law requires this two-envelope system, and that the voter certificate be included on a flap attached to the inner envelope. Finally, a reminder printed on the outer envelope states, “For your vote to count, you must: 1) Vote your ballot and place it in the inner envelope with the attached certificate, 2) Seal the envelope, 3) Place the envelope into the larger envelope addressed to the board of elections and seal that envelope.”

New York’s absentee ballots include an inner “ballot envelope” that contains the voter affirmation requiring a signature. According to Oswego and Cattaraugus counties, “unless the oath is signed and the ballot is enclosed in the secrecy envelope, your ballot will not be counted.” During the 2020 primary, election officials rejected more than 84,000 ballots in New York City alone due to a combination of missing signatures, mismatched signatures and absentee ballots arriving without postmarks. However, recent state law changes and an agreement between New York and the League of Women Voters will give voters the opportunity to correct technical errors or other problems. The settlement requires the Board of Elections to notify voters by phone, email or mail if there is an error with their ballot, and allows voters to correct these errors through a cure affirmation form within five to seven days.

Caption: An official New York absentee ballot inner envelope with identifying information removed. Photo credit: D. Brian Hufford

New York’s election code details the requirements for the inner envelope. One side of this envelope has space for the voter’s name, residence and other identifying information. The reverse side displays the voter affirmation, with space for the voter’s signature.

The Ohio absentee ballot package contains an inner absentee ballot “identification envelope” that is required for signature verification purposes. Therefore, absentee ballots received without inner envelopes will be rejected in Ohio. Of the roughly 21,000 ballots that were rejected in the state’s 2020 primary, nearly 4,000 were rejected on the basis of a missing identification envelope or missing information on the inner envelope.

Under Ohio law, the director of elections is required to send a return envelope and an inner identification envelope, which displays an “Identification Envelope Statement of Voter.” This statement includes spaces for the voter’s name, residence, and other identifying information, as well as a declaration and space for the voter’s signature.

According to the Virginia election code, absentee voters must be sent a ballot, along with an inner envelope and a return envelope. The side flap of the inner envelope displays the “Statement of Voter,” which contains an oath and requires a signature. The statute states that “[w]hen this statement has been properly completed and signed by the registered voter and witnessed, his ballot shall not be subject to challenge[.]” Therefore, a missing inner envelope will result in a ballot’s rejection. In 2020, however, Virginia will not require a witness signature to be counted.

States (and Counties) That Accept Naked Ballots

During the 2020 primaries, more than 1,000 absentee ballots were rejected in Alaska, often due to a signature, witness or postmark issue. However, the state has not specified “missing secrecy sleeve” as a reason for rejection, and the Alaska Division of Elections for the Municipality of Anchorage told us that election officials will not reject ballots because of a missing secrecy sleeve, which was also its policy during the primary.

Alaska law requires that the election director “shall provide a secrecy sleeve in which the voter shall initially place the marked ballot, and shall provide an envelope with the prescribed voter’s certificate on it, in which the secrecy sleeve with ballot enclosed shall be placed.” Thus, the space for the voter’s signature and declaration appears on the mailing envelope, not the secrecy sleeve.

Each absentee ballot in Florida, per Florida’s election code, is sent to voters with a secrecy sleeve and a return envelope. Around 18,000 absentee ballots were rejected during the 2020 presidential primary due to missing and mismatched signatures, among other reasons. However, if a voter does not include the secrecy sleeve with the ballot, the vote will still be counted, according to election officials. Further, the voter’s certificate is printed on the back of the mailing envelope, not the secrecy envelope.

In 2020, Georgia absentee ballots are sent with an outer envelope and a white piece of paper called a privacy sleeve. A recent order from a district court in Georgia notes that “the ballot design was changed for the 2020 primary election to eliminate the secrecy envelope. ... Instead, the 2020 primary ballot included a ‘privacy sleeve,’ a change that was made to ‘allow faster processing.’” This change remains in effect for the 2020 general election. Crucially, officials say that returning the absentee ballot inside the secrecy sleeve is entirely optional. Further, Georgia’s election code explains that the oath of the elector, and other identifying information, is printed on the outer envelope, not the secrecy sleeve Note, however, that the Georgia secretary of state’s office mistakenly included in their instructions to voters that absentee ballots will include an inner “envelope.”

Nevertheless, more than 11,000 ballots were rejected during Georgia’s 2020 presidential primaries, mostly for late delivery. Other reasons for rejection included missing signatures and invalid ballot markings.

Under Hawaii’s absentee voting statute, each absentee ballot envelope includes a return envelope, a yellow secrecy sleeve, general information and the ballot itself. Critically, ballots will still be counted if the voter forgets to use the secrecy sleeve. However, the voter statement, printed on the outer envelope, must be signed for the ballot to be valid.

Minnesota’s election code requires that a return envelope and a ballot envelope be provided to each absentee voter. The return envelope must be large enough to contain an additional envelope, which conceals the voter’s identifying information, or the return envelope must include an additional flap that conceals this information.

According to phone calls with officials in Hennepin and St. Louis counties, a missing secrecy envelope is not a criterion for rejection. However, these counties also use a third envelope—a “signature envelope”—that is required for signature verification. Finally, the certificate of eligibility is printed on the back of the return envelope, rather than the inner envelope. Thus a ballot missing a secrecy envelope, but including a signature envelope or flap, will be accepted.

The North Dakota Century Code states simply that “a secrecy envelope and a return envelope must be enclosed with the [absentee] ballot.” The voter affidavit and spaces for the voter’s signature and identifying information are displayed on the back side of the return envelope, not the secrecy envelope.

Burleigh County Election Manager Erika White said that “there’s nothing in law that states we need [the secrecy envelope] coming back, and we see ballots all the time where we just have the ballot inside of this envelope, and that’s fine, we accept that. It’s really up to the voter if they want to use the secrecy sleeve.” Therefore, it appears that absentee ballots lacking secrecy sleeves will still be counted in North Dakota.

The Texas election code requires two envelopes, an inner ballot envelope and an outer “carrier envelope,” which includes voter information and space for a signature. According to the secretary of state, voters receiving ballots via the Military and Overseas Voter Empowerment Act are not required to provide a secrecy envelope. State officials advise these voters that “the lack of a secrecy envelope will not invalidate your ballot.” However, Texas has strict technical requirements for domestic absentee voters and a history of rejecting absentee ballots, including rejecting ballots “if a voter indicated they would be out of the county during the voting period, but the ballot was mailed from within the county.” Nevertheless, according to a Harris County official, election workers will sort through the ballots manually and ballots that do no include the inner envelope will still be counted.

Washington’s absentee ballots are sent with secrecy sleeves and outer envelopes, according to the state’s election code, though the code does not specify which envelope the voter declaration is on. Nonetheless, officials say that “the ballot [will] still [be] processed as normal if the security envelope is unsealed.” Indeed, the secrecy sleeve itself in at least one county has the words written on it: “If you forget to use the sleeve, your ballot will still be counted.” Therefore, it appears that ballots received without secrecy sleeves will not be rejected.

West Virginia absentee ballots are sent with inner and outer envelopes, marked per the state’s election code as “No. 1” and “No. 2.” Absentee ballot instructions and the code itself advise voters to fold a completed ballot, put it in “envelope #1” and seal that inner envelope before placing the inner envelope into “envelope #2.” Secretary of State Mac Warner has noted that he does not know the number of absentee ballots rejected during the 2020 primary. Nevertheless, election officials at the county clerk’s office in Kanawha County said that ballots will not be rejected if the voter fails to use the inner envelope. The forms on the outer envelope (No. 2), however, must be completed and signed before the envelope is returned.

States Without Required Secrecy Sleeves

A few states allow for, but do not require, counties to provide secrecy sleeves to absentee voters. For example, under Montana law, “[i]f a voted absentee ballot has not been placed in a secrecy envelope, the election administrator shall place the ballot in a secrecy envelope without examining the ballot” and the ballot will still be counted. In Oregon, the default rule is to provide voters with a secrecy envelope. However, counties can apply to the secretary of state to use a different procedure for maintaining privacy, and the state assures voters that “[t]he county elections office will maintain the privacy of your ballot if you forget the optional secrecy envelope or sleeve and your ballot will still count.”

Recap

Sixteen states require election officials to provide absentee voters with secrecy sleeves:

• Four states—Florida, Georgia, Hawaii and Washington—have declared that they will still count naked ballots statewide.
• Large counties in five other states—Alaska, Minnesota, North Dakota, Texas and West Virginia—have also confirmed that these ballots will be counted.
• The remaining seven states—Kentucky, New Hampshire, New Jersey, New York, Ohio, Pennsylvania and Virginia—have indicated that naked ballots will be rejected.

Therefore, voters in all of these states, but particularly the last seven, should closely follow ballot instructions. This means placing their ballot inside the inner envelope before placing this envelope into the outer envelope. Following these instructions will help to ensure that their votes are counted in the 2020 general election.