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Court of Appeal, Fourth District, Division 1, California.

Robert O. PETERSON, Plaintiff and Appellant, v. The CITY OF SAN DIEGO, et al., Defendants and Respondents.

Civ. 26356.

Decided: July 20, 1982

Ault, Midlam & Reynolds, John T. Holt and David W. Ault, San Diego, for plaintiff and appellant. John W. Witt, City Atty., Ronald L. Johnson, Chief Deputy City Atty., and Katherine Manning So, Deputy City, Atty., for defendants and respondents.

The sole issue in this case is whether an ordinance authorizing a city-wide election conducted solely by mail ballot violates a constitutional requirement that all voting be secret.

The issue presents itself in the political controversy surrounding the referendum election seeking voter approval of the proposed San Diego convention center.   The city council had approved a lease between the City of San Diego (City) and a redevelopment agency for construction of a convention center.   In response to a referendary petition the city council adopted a resolution to submit approval of the lease to the voters.   The city council then authorized a special municipal election to be conducted solely by mail ballot.   Peterson standing as a taxpayer, city resident and voter, filed a complaint for declaratory and injunctive relief challenging the constitutionality of the election.   A preliminary injunction was denied, the election conducted and the convention center ordinance defeated.

After a trial on the merits of the constitutional issue, the judge upheld the special election procedure, declaring the procedure did not violate the constitutional provision for voting secrecy.   Peterson appeals.1

Article II, section 7 of the California Constitution states:  “Voting shall be secret.”   Whether an election procedure of the type authorized by the convention center ordinance violates this constitutional provision is a question of first impression in California.   Even though this election has taken place this issue is not moot because it is one of general public interest and there is a reasonable probability the validity of mail ballot elections will be challenged again.  (See, District Election etc. v. O'Connor, 78 Cal.App.3d 261, 265–266, 144 Cal.Rptr. 442;  People v. West Coast Shows, Inc., 10 Cal.App.3d 462, 468, 89 Cal.Rptr. 290;  Rees v. Layton, 6 Cal.App.3d 815, 819, 86 Cal.Rptr. 268.)

Peterson contends the city-wide election by mail endangers the integrity of the election process and undermines the constitutional mandate for secret balloting.   His argument rests not in the safety of the ballots during mail transport nor in any flaw in the authentication or counting process but in the fact that there is no assurance of secrecy when the vote is cast.2  The mail ballot system, according to Peterson, “enables one voter to demonstrate to another person how he has cast his vote, and it opens the door to fraud, coercion, intimidation, and undue influence—the very evils the constitutional requirement of secrecy is designed to prevent.”

 The City defends the ordinance, asserting there is a presumption of constitutionality in favor of the city council's action which is not directly challenged by any proof of particular election abuses in this case.   According to the City, secrecy is ensured because the procedure used for mailing the ballots is the same system used in absentee voting.3  Finally, facing Peterson's position head-on, the City avers the constitutional mandate for secrecy does not require the votes be cast in secret.   The City supports this position by pointing to absentee ballot procedures and similar mail balloting in certain other limited elections.

The traditional method of voting in this country places the voter in a private booth to mark the ballot without observation.   The ballot is then concealed and placed in a box where it becomes indistinguishable from all other votes cast.4  This procedure protects two interests.   First, is the voter's personal right to cast a vote free from coercion or pressure and to keep the content of the vote cast a secret.   Second, is the electorate's right to democratic election designed to reflect the genuine persuasion of the populace.   This second interest is best protected by voting procedures which minimize the possibility of influence and tampering.5

The California Supreme Court has not needed to examine the meaning of or purpose behind the secrecy requirement in our constitution.   The Supreme Courts of other states have considered similar constitutional requirements and provide illumination here because the evils sought to be prevented by secret balloting are the same from electorate to electorate.6

The Supreme Court of Illinois voided several absentee ballots in Clark v. Quick, 37 Ill. 424, 36 N.E.2d 563, even though there was nothing in the record from which to conclude the votes had actually been tampered with.   The court stated:

“It will be found in all of the cases that the question for consideration by the court is not whether the ballot has been tampered with, but whether or not an unauthorized person has had opportunity to do so.”  (Id. 36 N.E.2d at p. 566.)

In considering the possible opportunity for irregularity with a mailed ballot, the court wrote:

“Our system requires not only that the ballot must be secret, but that the voter himself must be given no opportunity to satisfy some other person how he has voted.  [Citation.]   Thus a ballot voted outside the booth is void.  [Citation.]”  (Ibid.)

Had the voters voted at the polls or for legitimate reason voted absentee and placed their ballots in the mail, the votes would have been counted.   Because there had been an opportunity for interference by a third party, the votes were void.

In Evans v. Reiser, 78 Utah 253, 2 P.2d 615, the Supreme Court of Utah considered the validity of 571 ballots challenged for irregularities in their marking.   The court reviewed “the spirit and purpose” of the election laws particularly the constitutional language “All elections shall be by secret ballot.”  (Id. 2 P.2d at p. 624.)

“The preservation of secrecy in voting contemplates not only that no one except the voter shall actually see the voter cast his ballot, but it also contemplates that when a ballot is cast it may not by reason of markings not authorized by law be picked out and separated from the other ballots.   Among the purposes doubtless sought to be accomplished by the constitutional provision requiring that the secrecy of the ballot be preserved was to do away with, or render impossible the evil incident to the improper use of money, intimidation of voters and other fraudulent means that might be resorted to for the purpose of influencing the electorate.   If a voter is required to mark his ballot in secret, with a designated mark or marks, and in a designated position upon the ballot, such evils cannot thrive.   A person is not likely to enter into an agreement with a voter to pay for his vote unless such person has a way of ascertaining whether or not the voter has cast his ballot as agreed.   And likewise a person is not likely to use threats to influence a voter to vote in a given way unless such person has the means of ascertaining the way the voter casts his ballot.”  (Id. 2 P.2d at p. 625.)

The Evans court was concerned that voter identification could occur by proof votes had been cast in a certain way by extra markings on the ballots.   Similarly, in the instant case, Peterson is concerned that voters could show third parties proof of the content of their vote before mailing their ballot.

The Supreme Court of South Carolina held a statute which permitted husband and wife to enter the voting booth together and to discuss their ballots unconstitutional in State ex rel. Edwards v. Abrams, 270 S.C. 87, 240 S.E.2d 643.   The South Carolina Constitution reads:

“Elections to be by secret ballot;  protection of right of suffrage.

“ ‘All elections by the people shall be by secret ballot, but the ballots shall not be counted in secret.   The right of suffrage, as regulated in this Constitution, shall be protected by laws regulating elections and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult, or improper conduct․’  [Art. II, § 1.]  (Italics added.)


“ ‘The General Assembly shall ․ provide for the administration of elections and for absentee voting, insure secrecy of voting, establish procedures for contested elections, and enact other provisions necessary to the fulfillment and integrity of the election process.’  [Art. II, § 10.]  (Italics added.)”  (Id. 240 S.E.2d at p. 644.)

The court explained:

“We think ․ the overriding purpose of the secrecy provision is to insure the integrity of the voting process.   It is calculated to secure privacy, personal independence and freedom from party or individual surveillance.   It tends to promote an independent and free exercise of the elective franchise.”  (Id. 240 S.E.2d at pp. 645–646.)

 The conclusion to be drawn from these cases is, unless the government can assert sufficient reason to except itself from the mandatory language of the constitution, votes must be cast in secret.   We must next consider what is the proper standard of review in order to decide whether the City asserts sufficient reason.

 Under basic constitutional principles, the standard of review depends upon the nature of the rights or interests to be protected.   The two interests in this case are the voter's rights incident to the franchise and the electorate's right to integrity in the election process.   Clearly, the voter's right is fundamental and subjects limitations of that right by the government to strict scrutiny.  (Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481;  United States v. Executive Com. of Dem. P. of Greene Co., Ala. (D.C. N.D. Alabama W.D.;   S.D. Alabama N.D. 1966) 254 F.Supp.2d 543, 546.)   If the voter's right to cast a secret ballot was limited by the ordinance, the City cannot and does not offer a compelling reason to force the voter to give up privacy.   Instead, the City asserts the mail ballot does not force the voter to give up the ballot's secrecy:  “Those who wish to preserve the secrecy of their selection need only assure themselves a few moments of privacy to do so.”

The second interest protected by voting secrecy cannot be waived by the individual voter's choice to divulge the content of the vote after the ballot is cast.   Social policy requires the ballot be cast to reflect the honest and unpressured persuasion of the voter.   Therefore, unless a compelling reason exists to relax the secrecy requirement, the constitution requires assurance each vote is cast in secret.   One such compelling reason can be found in the legislative provision for absentee voting.

A general election conducted primarily by mail ballot is very different from individual absentee voting by mail in an otherwise traditional process.   The paramount interest protected by absentee ballot is the voting franchise.7  California's Constitution was amended in 1922 to permit absentee voting.  (ACA 13, Proposition 22, Nov. 7, 1922;  Stats.1923, ch. 283.)   The constitutional provision was modified in 1926 and again in 1928, and amended in 1930 to increase the number of persons eligible to vote by absentee ballot.  (See ACA 20, Proposition 13, Nov. 2, 1926;  ACA 35, Proposition 18, Nov. 6, 1928;  ACA 33, Proposition 25, Nov. 4, 1930;  Stats.1931, ch. 785.)   The law has now been amended to permit any voter to obtain an absentee ballot without a specific reason for the request.  (Stats.1978, ch. 77.)

Our Supreme Court discussed the absentee voter procedure in Scott v. Kenyon, 16 Cal.2d 197, 201, 105 P.2d 291:

“ ‘It will be observed that [absentee voter] statutes are designed to carefully protect the absent voter in his right to a secret ballot, which is the very foundation of our election system.   Great care is taken to provide that, in handling and counting the absent voters' ballots, the same secrecy which surrounds the casting of regular ballots at the polls shall be preserved and maintained․’ ”

The issue in Scott was whether nine absentee ballots could be counted.   The court found “ ‘In handling and counting the absent voters' ballots with which we are here concerned, practically every applicable provision of the law, including every provision designed to preserve the secrecy of the ballot was broken.’ ”  (Ibid., italics added.)   The Scott court was not faced with a challenge to secrecy at the time the vote is cast, but language in the opinion suggests the absent voter's franchise is of such a fundamental nature, some small sacrifice to the integrity of the election process must be made to accomodate the fundamental right to vote.8

“[W]e deem it of the highest importance to the protection of the elective franchise that the law should be complied with in substance, and that those intrusted with the discharge of the duties pertaining to elections should be required so to perform them as to preserve the ballot-box pure.   Others besides those who may lose their votes by the malconduct of officers of elections are concerned ;  and while seeking upon just principles to save the elector his vote offered and given in good faith, we are not to forget that he himself, as well as all honest people, are vitally interested in the protection of the right of suffrage ․”  (Id., at p. 203, 105 P.2d 291.)

The Scott court was very concerned with voting procedures which provide an opportunity for fraud.  (See, p. 201, 105 P.2d 291 “ ‘Not only is it apparent that the opportunity for fraud existed, but it clearly appears that the secrecy of these particular ballots was destroyed’ ”;  p. 202, 105 P.2d 291 “ ‘[A]n opportunity for fraud existed’ ”;  and p. 203, 105 P.2d 291 “ ‘[T]here was not only opportunity for fraud, but such actual tampering with the ballots as prevented a complete review and recount ․’ ”)   What can be gleaned from this opinion is:  when actual fraud is found in the absentee ballot procedure, the electorate's interest in the integrity of the election process may outweigh the individual's right to vote.

“ ‘Ordinarily, courts are reluctant to throw out votes where it can be told for whom the vote was intended and where the irregularity complained of is that of one of the election officials for which the voter is not to blame.   At times, however, irregularities on the part of election officials are of such a kind that broader considerations, such as the rights of voters in general and the purity of elections, may demand that certain votes be not counted even where the intention of the voters can be determined․’ ”  (Id. at p. 202.)

 Absentee voting is not contrary to the Constitution because the government cannot show a compelling interest sufficient to justify limitation of the fundamental right to vote.   Furthermore, every procedure necessary to preserve secrecy in absentee balloting is required.  (Scott, supra, pp. 201–203, 105 P.2d 291.)

The need to protect secrecy in absentee balloting is evidence by a recent opinion by the Attorney General.   The opinion concludes, although applications for absentee ballots may be distributed by anyone, absentee ballots must be delivered to the voter in person or by mail and may not be given to third parties for delivery to the voter.   Likewise, the voter must return the ballot in person or by mail and ballots cannot be returned by third parties.   There are limited exceptions to these rules, as in the case of some physical handicaps, but “the policy behind the absentee voter statutes [is] to protect the absentee voter's right to a secret ballot.”  (62 Ops.Cal.Atty.Gen. 439, 442 (1979).)

The constitutional policies which permit mailing absentee ballots do not support the use of mail ballots to conduct a city-wide election.   Some compromise to the integrity of the election process is present when the ballot is not cast in secret.   This compromise is tolerated in absentee balloting because the individual has a fundamental right to vote.   The possible effect on the integrity of the election by irregularities in mailed ballots is small when the ballot is used only by absentee voters.9  The opportunity for fraud is much greater if all or even a substantial number of ballots are cast outside the voting booth.

Two governmental interests can be asserted to justify an election conducted by mail ballots.   The mail ballot is more economical than the traditional booth balloting in local polling places.   Secondly, by making voting more convenient there will be greater voter participation.   We find neither of these reasons compelling.   There is no financial measurement equivalent to the integrity of a city-wide election, for an election which may have resulted from a corrupt electorate or which does not reflect the genuine preference of concerned voters has no value.   Similarly, although the right to vote is fundamental, it is not absolute and is subject to certain limitations necessary to properly conduct the election.   For example, the Legislature may set methods for marking ballots and ballots marked improperly may not be counted;  voters are required to vote in assigned polling places and during limited hours;  and absentee voters must make application for ballots and cast those ballots according to particular methods.   These limitations serve to limit, in some ways, maximum voter participation.   A voting procedure which requires secrecy at the time the vote is cast may be inconvenient but it is necessary to protect the integrity of the voting process.

 We find, for the reasons discussed above, the presumption of constitutionality of the ordinance is overcome (see Rees v. Layton, supra, 6 Cal.App.3d 815, 822, 86 Cal.Rptr. 268) because the ordinance is in direct conflict with the Constitution and the City offers no compelling reason to justify this election procedure.   Even though it is our duty to uphold elections when possible, we cannot sanction an election procedure which provides widespread opportunity for conduct which threatens the integrity of the vote.  (See San Francisco Fire Fighters v. Board of Supervisors, 96 Cal.App.3d 538, 552, 158 Cal.Rptr. 145.)

Judgment reversed.


1.   Although this issue occurs in the context of the city convention center referendum, the outcome of this case will have no effect on the political issues surrounding the convention center election.   If the mail ballot procedure is constitutional, the referendum was validly defeated by the voters in the election.   If the procedure is not constitutional the convention center ordinance fails because it was not submitted to the voters in a valid election within the required time period.  (See § 27.2616 of the Mun.Code, City of San Diego.)

2.   Cf. the recent case of Beattie v. Davila (5, Franson, J., w/Brown, P.J., & Zenovich, J., conc.) 82 Daily Journal D.A.R. 1482, which considered whether a third party campaign worker could solicit, observe the marking, gather and return absentee ballots for the absent voters.The Court of Appeal affirmed a trial court judgment permitting the election committee practice because there was no showing of actual tampering.   Even though the court clearly recognized the danger this campaign tactic posed on the integrity of the election, it validated the election:  “We recognize that permitting a nonneutral party to handle absentee ballots before they are returned to the elections official opens the door to possible wrongdoing․   As the old maxim goes, ‘All's fair in politics.’ ”Beattie does not compel us to validate the election in this case because Beattie was concerned with collection procedures for absentee ballots and Peterson does not challenge absentee ballot procedures.   Furthermore, the Beattie court did not adequately analyze nor value the effect of the potential for fraud on the integrity of the electoral process.

3.   Incidental to this position, the City claims the ordinance is not offensive because it does not require ballots be mailed but merely permits them to be mailed.   This allegation simply cannot be read into the proposed election under the ordinance and it is contrary to the election materials supplied to voters with their balloting material.  (See, Ord.No. 0–15452, (New Series) sections 1 and 2 calling for a special municipal election to be conducted “solely by mail”;  section 3 “municipal election by mail”;  section 4 the election “shall be conducted entirely by mail except as otherwise provided”;  section 6 a mail ballot is provided and stamped return envelope enclosed;  and section 11 “ballots shall be returned in the pre-addressed and pre-stamped return identification envelope provided” at an authorized place (the limited exceptions referred to in section 4).)   The sample ballot and voting information pamphlet also instruct voters to mail or deliver their ballot to the city clerk or registrar.   No alternative voting procedure is offered by either the ordinance or the ballot information.

4.   Briefly, our voting procedure, the Australian ballot, did not come into wide-spread use until after the Civil War, although secret ballots were in use in South Australia, England and Ireland.   The secret ballot cast privately by the voter in a booth was necessary to prevent identification by would-be bribers.   It was thought that without insurance as to how the vote was cast the briber would be less likely to attempt to influence the vote.  “Bribery” took the form of direct money payments, employer and landlord retaliation, and individual intimidation.  (See generally, E. Evans, A History of the Australian Ballot System in the United States (1st ed. 1917) at p. 10.)   The California Legislature adopted the Australian ballot in 1891.  (Stats.1891, ch. 130, p. 165.)

5.   See, Gill v. Shurtleff, 183 Ill. 440, 56 N.E. 164, 166, where the Supreme Court of Illinois stated:  “The vital purpose of our ballot system is twofold:  First, to enable each voter to cast a secret ballot;  and, second, to require him to do so.   The first of these purposes is for the protection of the elector;  the last to preserve the purity of the ballot box by depriving the corrupt voter (as far as possible) of the power or opportunity to satisfy others that he voted a particular ticket ․”  (Italics added.)

6.   One commentator writes about the effectiveness of secret balloting in protecting the integrity of the election:  “On one hand it checks bribery and all those corrupt practices which exist in voting according to bargain or understanding.   No man has ever placed his money corruptly without satisfying himself that the vote was cast according to the agreement, or, in a phrase which became only too commonplace during the last campaign, without proof that ‘the goods were delivered’;  and when there is to be no proof but the word of the bribe-taker (who may have received thrice the sum to vote for the briber's opponent), it is idle to place any trust in the use of such money.   In other words, take away all interest in committing the offence, and the offence will soon disappear․   On the other hand, the marking of the vote in seclusion reaches effectively another great class of evils, including violence and intimidation, improper influence, dictation by employers or organizations, the fear of ridicule and dislike, or of social or commercial injury,—all coercive influence of every sort depending on a knowledge of the voter's political action․   In short, the secret ballot approaches these more or less elusive evils, not merely with the weak instrument of a penal clause for this and that offence, but with the effective methods of modern legislation.   By compelling the dishonest man to mark his vote in secrecy, it renders it impossible for him to prove his dishonesty, and thus deprives him of the market for it.   By compelling the honest man to vote in secrecy it relieves him not merely from the grosser forms of intimidation, but from more subtle and perhaps more pernicious coercion of every sort.   By thus tending to eradicate corruption and by giving effect to each man's innermost belief, it secures to the Republic what at such a juncture is the thing vitally necessary to its health,—a free and honest expression of the convictions of every citizen.”  (Wigmore, The Australian Ballot System, pp. 50–51, The Boston Book Company (2d ed. 1889);  italics added.)

7.   An absentee voting privilege developed during the Civil War to accommodate those in military service at the time of war.  (Gaylord, History of Election Laws, West's Anno. Election Code, § 1, p. 1;  DeFlesco v. Mercer County Board of Elections, 43 N.J.Super. 492, 129 A.2d 38 at 40.)   California permitted soldiers in the Union Army to vote as early as 1863.  (Stats.1863, ch. 355, p. 549, supplemented by stats.1863, ch. 383, p. 431;  stats. 1863–64, ch. 272, p. 279.)   These statutes were held unconstitutional in Bourland v. Hildreth, 26 Cal. 161.   Both laws were repealed by the Legislature.  (Stats.1865–66, ch. 251, p. 277.)   Attempts to establish an absentee privilege were rejected by the voters in 1914, in 1917, in 1918, in 1920, and finally succeeded in 1922.  (See Gaylord, supra, at pp. 39–40.)   In 1923 the Legislature added section 1357 to the Political Code which permitted absentee voting for those in military or naval service.  (Stats.1923, ch. 283, p. 586.)

8.   The Supreme Court of South Carolina found the electorate's right to secrecy was not absolute but must be balanced with the voter's right of suffrage.   The court held husband and wife could not accompany each other in the voting booth but third parties could assist voters under limited circumstances:  “Without such assistance, blind persons, and some others, would be denied the right of suffrage.   Either the right of suffrage must be denied or the mandate of secrecy relaxed for handicapped persons.”  (State ex rel. Edwards v. Abrams, supra, 270 S.C. 87, 240 S.E.2d 643, 646.)

9.   One commentator discussed the effect of absentee ballots:  “The absentee ballot is intended to insure the right to vote of people who encounter difficulties in voting at the polls in conventional elections.   But such persons are always a small proportion of the total voters.   For example, in the regular statewide elections held from 1960 to 1976, absentee voters averaged only a little over three percent of the total ․   In mail ballot elections, on the other hand, every voter casts his vote by mail.”  (Bolinger, Election Law During the 60's and 70's, West's Anno. Election Code, 55, 126.)

STANIFORTH, Associate Justice.

COLOGNE Acting P.J., and REED,* J., concur.

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