Insisting on a Secret Ballot In the Impeachment Resolution is “Plausible” for GOP senators
Although most media attention has focused on whether 4 Republicans will insist that the Senate’s Organizing Resolution for Impeachment provide for the witnesses, a gesture which virtually everyone agrees will not alter the anticipated acquittal of the President, the media has largely ignored the proposal by several legal scholars about how those same 4 (maybe 3) GOP senators might insist upon a different provision in the resolution which many have predicted would result in the removal of the President, suggests public interest law professor John Banzhaf.
They could do this by insisting that, to insure fairness and an outcome free from fear of political retribution from President Donald Trump and Senate Majority Leader Mitch McConnell (who says he is fully cooperating and coordinating with the President during his trial), the resolution provide that the crucial votes would be by secret ballot; a procedure which many predicted would result in more than 30 GOP senators joining with Democrats in voting to convict.
After all, notes Banzhaf, many other countries, including the United Kingdom, use secret ballots when their legislatures hold no-confidence votes to oust a prime minister.
Trump to be removed via secret ballot?
Although open and recorded voting in Congress is customary, the Senate in voting on Trump will be acting more like a jury where votes are secret to help insure fairness and impartiality, and senators must swear to be impartial; to “do impartial justice according to the Constitution and laws, so help me God.”
Indeed, jurors in cases throughout the United States always vote in secret. If they didn’t, as the Supreme Court has warned, “improper influence” could taint the verdict.
These concerns ought to resonate with Republican senators, who are well aware that President Trump monitors their behaviors “very carefully.”
Secret ballots in Congress are not unprecedented.
For example, when the Electoral College deadlocked in the past, House votes to elect Thomas Jefferson in 1800, and John Quincy Adams in 1824, were conducted by secret ballot to permit representatives to vote free from political pressure.
Moreover, the Constitution expressly provides that “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment REQUIRE SECRECY.” [emphasis added]
So, a rule providing for a secret ballot would be probably held constitutional, if it could possibly be challenged in court anyway, and it also has some congressional precedent, suggests Banzhaf.
GOP Senators and a secret ballot?
Moreover, as law professors Jonathan Gould and David Pozen wrote in THE ATLANTIC, in a piece suggesting that a resolution providing for a secret ballot was “plausible”: “U.S. history provides ample precedents for secrecy in impeachment proceedings, if not in the final vote itself. Although the call of the roll was public, the Senate’s deliberations during President Andrew Johnson’s trial were private and unrecorded. After negotiations on the issue of transparency, the Senate likewise shut out spectators for multiple days of President Bill Clinton’s trial. Presiding over that trial, Chief Justice William Rehnquist acknowledged that ‘the consistent practice of the Senate for the last 130 years in impeachment trials [has been] to require deliberations and debate … to be held in closed session.'” [emphasis added]
If Republican senators were free by a secret ballot to vote their convictions, GOP strategist Mike Murphy recounted that a sitting Republican senator had confirmed that 30 of his colleagues would vote to convict Trump. Former Senator Jeff Flake went even further, predicting that 35 of his former Republican colleagues would join with Democrats to remove Trump from office.
Banzhaf notes that while most in the media are talking about the need for 4 Republicans to side with the Democrats to permit witnesses, 3 GOP senators who refuse to agree to any impeachment resolution which does not guarantee witnesses – and/or possibly voting by secret ballot – would result in a defeat of the motion with a 50-50 tie, possibly forcing McConnell to make some concessions.
Under those circumstances, it is doubtful that the Chief Justice could cast a deciding vote since the Senate’s impeachment rules say that, as presiding officer, he only “may rule on all questions of evidence.”