Tuesday, October 19, 2004
S.C. Orders Review of Secret Ballot Waiver Under New Vote-by-Fax Law, but Not for This Election
By a MetNews Staff Writer
The California Supreme Court yesterday declined to block a new state law that requires overseas absentee voters to waive their right to a secret ballot if they choose to send in their votes by fax.
The high court issued an order to show cause, leaving it to a Sacramento Superior Court judge to decide “well in advance of the next statewide election” whether the requirement—part of Election Code Sec. 3103.5—violates the right to a secret ballot under the state Constitution or the Help America Vote Act.
But the justices who signed the order—Chief Justice Ronald M. George and Justices Marvin Baxter, Janice Rogers Brown, and Carlos Moreno—said it was “impossible, as a practical matter, to provide interim relief with regard to the upcoming election without engendering undue confusion and uncertainty in the election results.”
The section was enacted by AB 2941 by Assemblywoman Patricia Bates, R-Laguna Niguel. The bill was supported by Secretary of State Kevin Shelley and signed by Gov. Arnold Schwarzenegger.
The law, an urgency measure effective Sept. 27, was passed to enable registered votersoverseas, including those who might be unable to return their absentee ballots by mail in time to be counted—such votes must arrive by 8 p.m. on election day—to vote by fax. Such voters must complete an oath and provide all of the information that goes on the absentee voter identification envelope in order to have their votes counted.
The oath includes a statement in which the voter acknowledges “that by returning my voted ballot by facsimile transmission I have waived my right to have my ballot kept secret.” Election officials must, despite the waiver, adopt procedures to preserve voter secrecy, the statute provides.
Two overseas voters, represented by Mountain View attorney and Democratic Party activist Scott Rafferty, petitioned the Supreme Court for a writ directing that the waiver be stricken.
Nineteen other states permit voting by fax, the Associated Press recently reported.
The case is Bridgeman v. Shelley, S128311.
Copyright 2004, Metropolitan News Company