Now You Have a Secret, Now You Don't. Secret Balloting and Proposition 218

By William W. Abbott 

The California Supreme Court, in a unanimous decision, reversed the First Appellate District and upheld a trial court’s decision rejecting a challenge to overturn a Proposition 218 election. In Ford Greene v. Marin County Flood Control and Water Conservation District (June 7, 2010) 49 Cal.4th 277, the basis of the challenge was whether or not the district conducting the election had maintained the requisite level of voting secrecy.

The facts involve the Marin County Flood Control and Water Conservation District. Due to the high flooding potential in any year, the District submitted a storm drain assessment to voters for approval. In compliance with Proposition 218 (Article XIII D of the California Constitution), the District Board adopted protest provisions, conducted a public hearing, and directed mailing of notices to property owners. At the conclusion of the hearing, the Board determined that there was not a majority protest, and called for a special election. The Board decided to conduct a mail-only election. The materials sent to the voters consisted of a single piece of cardstock, with instructions on one side and the ballot on the other. The ballot side provided for name and address of the voter, the amount of the annual fee, the statement of the question to be voted on, and designated spaces for the voter’s printed name, signature and the date.

The election procedures adopted by the Board provided that ballots, when received would be put in a lock box, with access permitted only by the clerk and deputy clerk. The instructions provided that the clerks would not disclose how particular voters voted except by a court order. The voters passed the measure.

Greene, a property owner within the District, filed suit, and other interested parties intervened in the litigation. One of the issues tendered by Greene was the requirement that the voter sign the ballot violated Article II, section 7 of the California Constitution, providing for secret balloting. The trial court rejected the argument, but was reversed by the Court of Appeal. The Supreme Court took the case to resolve the potential conflict between the secret balloting provisions and the elements of Proposition 218 calling for voter specific information as part of the voting process.

To resolve the potential conflict, the Supreme Court reviewed the history of Proposition 218, including the follow up legislation adopted in later years (1997 and 2000). Notably, the 2000 legislation addressed the secrecy question in part, but did not require the full secrecy associated with general elections. Recognizing that Proposition 218 elections for assessments call for weighted voting based upon the liability to the voter, review of the specific ballot information particular to each voter, as prescribed by legislative procedures was necessary. Although the appellate court believed that the district could have maintained a higher level of secrecy, the Supreme Court concluded that actions taken by the District were consistent with both Proposition 218 and the implementing legislation, and the fact that more secrecy could have been applied was not mandated by Article II, section 7, at least with respect to the facts involving a Proposition 218 election.

William W. Abbott is a partner at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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