The First District Court of Appeal overturned a local storm drainage fee election March 11, ruling that the mail-in ballot was not a secret ballot, and that Article XIII D of the California Constitution (Proposition 218) requires confidentiality even in elections dealing with fees.
"(V)oters were instructed to cast signed ballots with their names and addresses printed on the face of the ballots and were given no assurances that the ballot would be kept confidential," the court ruled. "The votes cast were not a reliable expression of popular will."
The court set aside the results of a June 2007 election conducted by the Marin County Flood Control and Water Conservation District, which includes the communities of Greenbrae, Larkspur, Corte Madera, Kentfield, Ross, San Anselmo and Fairfax. Votes that were counted allowed the district to impose a $125-per-parcel tax to fund flood-protection efforts, with the amount of the fee depending on various traits of each affected parcel. The vote was 3,208 in favor, 3,143 opposed, and 1,708 votes that were invalidated – most because they lacked a signature.
After the election results were certified in July 2007, property owner Ford Greene, a San Anselmo Town Council member, demanded a recount and also argued that the requirement that voters sign their ballots violated Elections Code requirements for voting by mail. The Marin County Superior Court denied the election contest and ruled that the ballot complied with the state constitution and a Government Code section that says Elections Code laws do not apply to assessment balloting.
(Cal-Tax: This is the case stemming from the outrage after the district tossed out 1,708 votes. The Marin County Registrar of Voters did not conduct the election. The parties in the suit disputed whether the unsigned ballots would have changed the result of the election, and the court did not rule on that issue. Mr. Greene said that if all the votes had been counted, the measure would have failed.)
The appellate court disagreed with the lower court, and stated in the opening line of its discussion: "The California Supreme Court has declared that the 'right to a secret ballot … is the very foundation of our election system.'" The court ruled that when voters approved Proposition 218, giving Californians the right to vote on local taxes, they intended that the elections be conducted with secret ballots. Thus, the court tossed the results of the election and ordered the district to pay Mr. Greene's legal costs.
Apparently, the decision caught the Marin County political establishment by surprise. Supervisor Hal Brown said: "We should appeal. We did this by the letter and spirit of the law."
Marin County Counsel Patrick Faulkner called the decision a troubling miscarriage of justice. Deputy County Counsel Sheila Lichtblau said the election "is not an election within the meaning of the California Constitution."
However, Fairfax City Councilman Larry Bragman called the decision "a great vindication for voting rights."
Marin County Tax Collector Michael Smith said taxpayers must continue to pay the tax (he called it a "fee") until the legal battle ends.
The case is Ford Greene v. Marin County Flood Control and Water Conservation District. The 33-page opinion was written by Justice Robert Dondero. Presiding Justice Barbara Jones and Justice Henry Needham concurred.
(Cal-Tax: Apparently, Marin County officials have no
problem disenfranchising nearly 25 percent of the voters who cast ballots in
the election. While this published decision could impact the way local
governments conduct their elections, the decision does not ban mail-in
elections. The court's ruling notes that "the voter and parcel identifying
information could be placed on the outside of an envelope that contains the
ballot, in the manner of absentee voting." This likely would increase
election costs, while dramatically improving the confidentiality of ballots.)
(Sources: Court decision; Marin
Independent-Journal, March 12.)
Cal-TaxReports, March 16, 2009
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