Tuesday, June 8, 2010
Strict Ballot Secrecy Not Required in Vote on Assessments—S.C.
By KENNETH OFGANG, Staff Writer
California’s strict laws governing the secrecy of the ballot do not fully apply to a vote by property owners on whether to approve a special assessment under Proposition 218, the California Supreme Court ruled yesterday.
In a unanimous decision, the justices reversed the First District Court of Appeal and rejected a contest brought by San Anselmo attorney Ford Greene, seeking to throw out the result of a 2007 election in which landholders in Marin County’s Ross Valley approved a flood control assessment by a vote of 3,208-3,143.
Greene contended that the manner in which the election was conducted violated Art. II, Sec. 7 of the state Constitution, which provides that “[v]oting shall be secret.”
Under the procedures adopted by the Marin County Flood Control and Water Conservation District for the vote-by-mail election, each voter received a card with instructions for filling out the ballot on one side and the actual ballot on the other. The instructions specified that the ballots were to be signed.
The actual ballot contained the name and address of the property owner, the exact amount of the annual fee to be imposed on the property owner, the statement of the question to be voted on, yes and no check boxes, and designated spaces for the voter’s printed name, signature, and the date.
The clerk of the Board of Supervisors of Marin County was to date stamp the return envelopes of the unopened ballots as they were received and place them in a secure container or “lock box.” The ballots were to be opened only after all the ballots were due, and it was specified that only the clerk and deputy clerks were to have access to the ballots, and that they were not to disclose how a particular voter voted, unless required to do so by a court order.
Greene complained that the notice given to the voters did not adequately inform them that they were required to sign the ballot, because the warning was inconspicuously placed in small type and was not in boldface. He alleged that as a result of this defect, 1,648 ballots were invalidated for lack of signature—approximately 21 percent of the votes cast, in contrast to the usual 1 percent invalidation rate in Marin County elections.
He argued that the election result should be tossed out, or that there should be a recount that would include the unsigned ballots. The Court of Appeal ruled that the election was invalid because the lack of adequate notice of the rules effectively deprived voters of the ballot secrecy to which they were constitutionally entitled.
In his opinion for the high court, however, Justice Carlos Moreno said the Court of Appeal erred in applying Sec. 7 to a special assessment election under Proposition 218.
The ballot measure, enacted in 1996, bars the imposition of a special assessment unless specified procedures, including a vote of property owners, are complied with. In conducting the vote, the measure says, the district must provide a ballot “whereby the owner may indicate his or her name, reasonable identification of the parcel, and his or her support or opposition to the proposed assessment.”
The Howard Jarvis Taxpayers Association, the original sponsor of the measure, complained that in some of the first elections held under the act, property owners who had made their ballots public but not yet turned them in were pressured to change their votes. As a result, lawmakers passed a bill in 2000 declaring that ballot secrecy was to be preserved before the assessment ballots were tabulated, but that the ballots were to be made a public record thereafter.
Moreno reasoned that Proposition 218 “authorizes government agencies to require property owners to identify themselves and their parcels on the ballot on which they indicate how they are casting their votes.” He rejected an argument by Greene and the HJTA that the non-secret voting provisions of Proposition 218 apply only to weighted voting elections, and not to the type of one-parcel-one-vote election involved in the case.
No ‘Special Weight’
In a footnote, the justice explained that while the HJTA drafted the initiative, its interpretation gets no special weight because there is nothing in the text of the initiative or in the ballot arguments to support it.
Moreno went on to say that the procedures used by the district, “striking this particular balance between secrecy and transparency,” adequately complied with Proposition 218 and the 2000 amendment. While it might have been preferable for the district to include with the ballot a more conspicuous explanation of the signature requirement and the limited secrecy procedures, there is nothing in the law that requires this, the justice said.
Greene argued his own case before the Supreme Court. Michael Colantuono of the Los Angeles firm Colantuono & Levin argued for the district.
The case is Greene v. Marin County Flood Control and Water Conservation District, S172199.
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