Metropolitan News-Enterprise


Wednesday, July 12, 2006


Page 1


Court of Appeal Upholds Lack of Secrecy Under Vote-by-Fax Law


By KENNETH OFGANG, Staff Writer/Appellate Courts


A 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 is constitutional, the Third District Court of Appeal ruled yesterday.

Overturning a contrary ruling by a Sacramento Superior Court judge, the appellate panel held that the secrecy waiver required by Election Code Sec. 3103.5 does not violate the right to a secret ballot under the state Constitution.

The vote-by-fax law--California is one of about 20 states where voters cast ballots by fax in the 2004 presidential election--was enacted in September 2004 as an urgency measure and is set to expire Jan. 1, 2009.

Two voters challenged the law in a writ proceeding before the state Supreme Court, but the justices said it would be impractical to hear the case before that year’s election and ordered that a Superior Court judge resolve the matter “well in advance of the next statewide election.”

The law was passed to enable registered voters overseas, 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.

Superior Court

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.”   The law, however, requires election officials to adopt procedures to preserve voter secrecy to the extent possible.

Sacramento Superior Court Judge Lloyd J. Connelly granted a writ of mandate barring the counting of fax votes, finding that the secrecy waiver violates the secret ballot requirement of Art. II, Sec. 7 of the California Constitution and that the waiver cannot be severed from the statute, rendering the entire vote-by-fax law invalid.

But Justice Richard Sims III, writing for the Court of Appeal, agreed with Secretary of State Bruce McPherson that the vote-by-fax statute represents a reasonable balancing of the secret-ballot guarantee against the right to vote, and that the petitioners failed to present substantial evidence of improprieties in the way the law has been implemented.

Sims noted that the secret-ballot requirement has not been rigidly interpreted in the past. The state Supreme Court, he said, has upheld the right of a city to conduct an election entirely by mail and has rejected efforts to invalidate an election on the grounds that third parties had assisted some voters--at the voters’ request--in completing ballots and had delivered some ballots to an election official.

“Fax voting...allows citizens to vote who could not vote otherwise,” the justice said. “In our view, given a choice between fax voting and not voting at all, citizens should be able to choose to vote by fax and to waive their right to a secret ballot.”

‘Troublesome’ Allegations

Sims acknowledged “troublesome” allegations that the federal government had contracted with a privately owned “data warehouse” with ties to the Republican Party to assist overseas military voters and that the company had solicited the social security numbers of such voters in violation of federal law.

The allegations were not supported by admissible evidence, Sims explained, but were merely inserted in a memorandum of points and authorities and in a newspaper editorial appended to a declaration by the voters’ counsel. Nor did those allegations include an assertion linking California fax voting with the company, the justice said.

The jurist also acknowledged the claim that secrecy is unlawfully compromised by the operation, as part of the federal government’s overseas voting program, of three fax numbers through which ballots “for any state” may be submitted. But there was no evidence as to who actually operates the numbers “and certainly no evidence of wrongdoing,” so the voters failed to meet the burden of proof, Sims wrote.

The case is Bridgeman v. McPherson, C050528.


Copyright 2006, Metropolitan News Company