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Although a 2/3 majority is required for the Senate to convict an impeached US President, some of the rules governing the Senate trial can be amended by a simple majority of the Senators.

Could a simple majority of Senators vote to make the conviction vote a secret ballot?

EDIT in light of some interesting answers:

By secret, I mean no record exists to ascribe a particular vote to a specific senator. Black balls, pieces of paper with "Convict" or "Don't convict" printed on them, whatever. Obtaining individual "Yays and Nays" to record in the Journal after the secret ballots have been collected and counted could prove impossible, but would that invalidate the result of the original, secret ballot?

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    The hypothetical in your Edit does not reflect Senate procedure. The Senate would not vote to use a secret ballot, hold the vote, and then after voting, decide to record yays and nays. Instead, the 1/5 rule would be invoked during the debate over the secret ballot. So if they decided to record yays and nays, they would not hold a secret ballot. (And yes, I realize that a majority of the Senate can change the rules whenever it wants, so they could throw out all the rules and proceed as you suggest. However, I think this is unlikely -- highly unlikely.) – Just a guy Dec 18 '19 at 2:09
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Yes the Senate could adopt a secret ballot rule, but other constitutional provisions combined with high partisanship make it practically impossible that the final results will be done through secret ballot.

As other answers have mentioned, Article 1, Section 3, provides for the Senate to have sole power of trying impeachments. Similarly by Article 1, Section 5, each House may adopt its own rules. That means that yes the Senate can create its own rules that say the conviction vote will be done by secret ballot.

However, adopting these rules only achieves a pyrrhic secret ballot. The very same section that provides for each house to make its own rules (Article 1, Section 5) also states:

...and the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal.

This means that if any vote is taken including this secret ballot vote, after doing so any member can ask for the Yeas and Nays of all members to be put into the Journal. The journal is the official record of each House. Thus while the vote was first taken in secret at least any member of the Senate will have access to the subsequent recorded vote, provided at least 1/5 of the Senate wishes to have a recorded vote. While not all is lost, the Senate could declare that this record itself is to remain secret, all 100 Senators and most likely many of their staff members will know how each Senator voted. Additionally, the Speech and Debate Clause states that:

for any Speech or Debate in either House, they shall not be questioned in any other Place.

Thus if a Senator were to publicly read the vote results into the record of a public committee hearing or during a filibuster or for really any other procedure (as rules of germane debate are very very lax in the Senate, but that is an issue for another question) that information could easily become public record.

So while yes the rules can be changed to use secret ballot, a fifth (20 Senators currently) could ask for the Yeas and Nays to be entered on the Journal and this defeats the purpose of the secret ballot. So the only reasonable way to keep a secret ballot as the final dispositive record of a vote is to convince more than 4/5ths of the Senators to not ask for a recorded vote. In this sense it is certainly allowed and possible for the Senate to vote by secret ballot.

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    @Justaguy hey I just updated the answer in response to your comment. – Viktor Dec 17 '19 at 8:00
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    Note that the "shall not be questioned in any other Place" does not prohibit the Senate from ejecting a member for reading a secret record into a public record. – Mark Dec 17 '19 at 22:12
  • @Mark absolutely true Mark. That is the only penalty the Senator may face. – Viktor Dec 17 '19 at 22:13
  • @Viktor This is the only constitutionally sanctioned penalty, but under its rules, the Senate could censure the Senator. If censured, the Senator would lose some privileges, such as chairing committee. The Party could also punish the Senator, by kicking her out of the Party conference and off committees. And of course, the voters could vote her out of office. Senators take these possibilities very seriously, and act accordingly. – Just a guy Dec 18 '19 at 2:25
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    @Mark Interestingly, the first Senator censured, Timothy Pickering, (in 1811) was censured for reading a secret document in an open session. It seems clear this was an accident, but his opponents "saw their opportunity and took it." – Just a guy Dec 18 '19 at 3:04
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Yes

Article 1 Section 5 Clause 2 of the Constitution says:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member.

Your proposed rule change (secret ballot) does not contradict any other part of the Constitution in particular Article 1 Section 3 Clause 6:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Incidentally, the manner in which either house conducts its business is not justicable so it is not subject to judicial review.

However, what you are proposing is a major departure from the way Congress conducts its business - all votes are public since it is largely on the basis of the public record of Congresspeople that the electorate can judge their actions.

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  • You say: "Your proposed rule change (secret ballot) does not contradict any other part of the Constitution..." This seems inconsistent with the next clause, which says, "the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal." – Just a guy Dec 17 '19 at 6:41
  • @Justaguy "Parts [of the journal] as may in their Judgment require Secrecy," however, may be kept from publication. – phoog Dec 17 '19 at 23:02
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    @phoog The 1/5 clause limits the "require secrecy" power. Here is why: Allowing votes counted under the 1/5 clause to remain secret would render the 1/5 clause superfluous -- there would be no point to recording votes and then keeping them secret. Interpreting the constitution in a way that renders some clause superfluous is a no-no under all theories of constitutional hermeneutics. – Just a guy Dec 18 '19 at 0:19
  • @Justaguy okay, but that's only true if a majority of the senate thinks so. If 1/5 of the senators present required the recording of the vote, and the senate subsequently voted to keep that part of the journal secret, who would tell them they can't do so? I doubt the courts would get involved. – phoog Dec 18 '19 at 0:30
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    @phoog It's even worse than that: A majority may "think so," but vote otherwise! But on the basic point, you are of course right: The problem of creating self-enforcing agreements is a deep one. In Federalist 51, Madison says "the great difficulty" in writing a constitution "administered by men over men" is to make government strong enough to enforce the law, and "oblige it to control itself." – Just a guy Dec 18 '19 at 1:27
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Yes. There is no constitutional provision prohibiting secret votes, and the House purportedly exercised its electoral powers in electing Thomas Jefferson in 1800 and John Quincy Adams in 1824, by secret ballot. The basic framework is already present in the Senate rules, in rule XXIX ("all remarks, votes, and proceedings thereon shall also be kept secret"). This is limited to Executive Sessions, but a rule can be added for impeachments (to keep this narrow). Rule XXI already allows the impeachment to be conducted behind closed doors.

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  • How does this square with Art. I, § 5, clause 3: "the Yeas and Nays of the Members of either House on any question shall, at the desire of one fifth of those present, be entered on the Journal." – Just a guy Dec 17 '19 at 6:49
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    The phrasing from Senate Rule XXIX you quote has nothing to do with impeachment. That phrasing applies to voting on treaties: "all treaties which may be laid before the Senate, and all remarks, votes, and proceedings thereon shall also be kept secret, until the Senate shall, by their resolution, take off the injunction of secrecy." – Just a guy Dec 17 '19 at 6:54
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There's been a fair amount written recently on the constitutionality of using a secret ballot for the Senate vote on whether to convict or acquit the President. For those who want to dig deeper, here are some places to start:

In September, former Republican Senator Jeff Flake claimed that if the Senate used a secret ballot, an overwhelming majorty of Republicans ("at least" 35/53) would vote to remove the President.

Juleanna Glover, a Republican strategist and lobbyist, proposed using a secret ballot in the Senate in Politico in early November. (She added an "update" in response to Volokh.)

In response to Glover, law professor Eugene Volokh blogged about the "1/5 rule" cited by Viktor.

And today, Jonathan Gould and David Posen wrote in the Atlantic, proposing that the Senate hearing itself should be secret.

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    I think you mean "vote for removal". Impeachment is only in the House. – Barmar Dec 17 '19 at 17:59
  • @Barmar I understand the difference. I go back and forth as to which wording is most helpful to people who aren't already clear on the difference between impeaching and convicting. You may very well be right, so I'll try it your way. Thanks. – Just a guy Dec 18 '19 at 6:53
  • I wonder if the subject of the impeachment vote knows the difference. He doesn't even think it's constitutional. – Barmar Dec 18 '19 at 15:35
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Could a simple majority of Senators vote to make the conviction vote a secret ballot?

No, a secret ballot would require changes to the rules and rules changes require a two-thirds of Senators to agree (or unanimous consent).

There appears to be no way that Senators could avoid their names not being known whether the action be a rule change or other.


RULES OF THE SENATE, Rule XXII 2.

... except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting...

To conduct a secret ballot, it would be necessary to submit a "Motion to Suspend the Rules" for, in particular, rules XIV, XX, and XXIII, of RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS.1

XIV. The Secretary of the Senate shall record the proceedings in cases of impeachment as in the case of legislative proceedings, and the same shall be reported in the same manner as the legislative proceedings of the Senate.

XX. At all times while the Senate is sitting upon the trial of an impeachment the doors of the Senate shall be kept open, unless the Senate shall direct the doors to be closed while deliberating upon its decisions. A motion to close the doors may be acted upon without objection, or, if objection is heard, the motion shall be voted on without debate by the yeas and nays, which shall be entered on the record.

XXIII. An article of impeachment shall not be divisible for the purpose of voting thereon at any time during the trial. Once voting has commenced on an article of impeachment, voting shall be continued until voting has been completed on all articles of impeachment unless the Senate adjourns for a period not to exceed one day or adjourns sine die. On the final question whether the impeachment is sustained, the yeas and nays shall be taken on each article of impeachment separately; and if the impeachment shall not, upon any of the articles presented, be sustained by the votes of two-thirds of the Members present, a judgment of acquittal shall be entered; but if the person impeached shall be convicted upon any such article by the votes of two-thirds of the Members present, the Senate may proceed to the consideration of such other matters as may be determined to be appropriate prior to pronouncing judgment. Upon pronouncing judgment, a certified copy of such judgment shall be deposited in the office of the Secretary of State. A motion to reconsider the vote by which any article of impeachment is sustained or rejected shall not be in order.
Form of putting the question on each article of impeachment
The Presiding Officer shall first state the question; thereafter each Senator, as his name is called, shall rise in his place and answer: guilty or not guilty.

Rule XXIII requires that the "yeas and nays shall be taken". Rule XIV requires that the "yeas and nays" be "reported in the same manner as the legislative proceedings of the Senate".

A motion to suspend the rules could be used to "close the doors" for the vote on the articles of impeachment and to prevent reporting of the "yeas and nays".

A motion to suspend rules VII, XX, and XXIV was voted during the impeachment of President William Jefferson Clinton. The motion failed due to, "Two-thirds of the Senators voting, and a quorum being present, not having voted in the affirmative, the motion is rejected." 2

Assuming the rules were suspended, the individual votes for "guilty" or "not guilty" would not be reported; however, the individual votes to suspend the rules to allow a secret vote would be reported, unless the rules were suspended by unanimous consent.


It is possible for Senators to be "excused" from voting on the articles of impeachment. A Senator may be excused by a simple majority or unanimous consent.3 The names of the Senators, so excused, would be known. If enough Senators of one party were excused, that would change the political balance for the votes on the articles of impeachment.


1 PROCEDURE AND GUIDELINES FOR IMPEACHMENT TRIALS IN THE UNITED STATES SENATE, p.p. 4-6.

2 PROCEEDINGS OF THE UNITED STATES SENATE IN THE IMPEACHMENT TRIAL OF PRESIDENT WILLIAM JEFFERSON CLINTON, VOLUME II: FLOOR TRIAL PROCEEDINGS, p.p. 1496-1497.

3 PROCEDURE ..., op. cit., p.p. 77-78.

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