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California's Special Election Question

by Ali Meyer // Published June 29, 2009

California's complex voting and election system has recently been faced with another obstacle. The California Appellate Court in Greene v Marin County Flood Control District is currently debating whether the secret ballot ought to be mandated in certain special elections.

Special elections in California are used in exceptional situations, such as the recall of an elected official, a vacancy to be filled, or a special ballot measure that needs to be voted on before the next regular election. Special elections are largely unique to California, and they tend to involve a complicated system of inauguration, often because of other, sometimes contradictory, laws in the state.

Proposition 218, which was passed in 1996, mandates that voters must approve of all taxes and most charges on property owners in order to limit potential abuses of government revenue-raising power. 

Prop 218 took the form of an amendment to the Constitution, creating Article 13, section D of the California Constitution. A quick text excerpt: "Voter Approval for New or Increased Fees and Charges. Except for fees or charges for sewer, water, and refuse collection services, no property related fee or charge shall be imposed or increased unless and until that fee or charge is submitted and approved by a majority vote of the property owners of the property subject to the fee or charge or, at the option of the agency, by a two-thirds vote of the electorate residing in the affected area. The election shall be conducted not less than 45 days after the public hearing. An agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision."

Prop 218 also inspired the Proposition 218 Omnibus Implementation Act of 1997, which detailed the procedures for the principles outlined in the Constitution. Part of the Act specified that the ballot must be "in a form that conceals its contents once it is sealed by the person submitting the assessment ballot" and, once received by the agency, must "remain sealed until the tabulation of ballots . . . commences." And during and after the process of counting the ballots, they become "disclosable public records . . . equally available for inspection by the proponents and the opponents of the proposed assessment."

Notably, the Act also required that the special elections "shall not constitute an election or voting for purposes of Article II of the California Constitution or of the California Elections Code." The California constitution requires secret voting in Article 2, section 7. The text simply says, "Voting shall be secret," but it is under the Article 2 heading of "voting, initiative and referendum, and recall," which does not explicitly include special elections.

This confusing theoretical situation of whether or not special election ballots ought to be secret is compounded by the facts of the case. In Greene v Marin County, voters' names and addresses were printed on the ballots, and voters signed their ballots. Because the ballots become public record as soon as the election has ended to ensure tabulation accuracy, it seems as though there is no voter privacy at all.

This issue will (hopefully) soon be decided by the California Appellate Court. Although the Constitution does not explicitly require the votes to be secret, a secret ballot is integral to the functioning of a democracy. If the court ruled that way, it would only necessitate a more logical ballot design, so that special elections can be run like regular ones. And if the court rules the other way, the elimination of secret ballots bodes for an ominous future for the safe functioning of Californian democracy.