California Supreme Court Confirms that the California Constitution Does Not Require Secret Ballots in Proposition 218 Ballot Proceedings

June 2010

On June 7, 2010, the California Supreme Court reversed a controversial decision by the First Appellate District that struck down the results of a vote by property owners on a fee for flood protection. Greene v. Marin County Flood Control and Water Conservation District, Case No. A120228 (2010). The First Appellate District had found that the flood control district violated the constitutional requirements that elections be conducted in secret by requiring voters to sign their names to the ballot. The California Supreme Court found that fee elections governed by Proposition 218 do not require the same kind of privacy protections as candidate or referendum elections. A ballot in a fee election that contains identifying information and requires the voter's signature does not violate secret ballot law if it maintains voter secrecy prior to the counting of the ballots. As a result, the Court reinstated the results of the fee election.

Background

Article II, section 7 of the California Constitution states that “[v]oting shall be secret.” This requirement dates back to an amendment made in the late 1800s, when section 7's predecessor was amended to say that “all elections by the people shall be by ballot or by such other method as may be prescribed by law; provided, that secrecy in voting be preserved.” In 1996, voters passed “The Right to Vote on Taxes Act,” known as Proposition 218, to close up perceived loopholes in Proposition 13, another measure designed to give voters the right to vote on new taxes. In part, Proposition 218 requires a local public agency to conduct a ballot proceeding of affected landowners in order to adopt, increase, or extend a special benefit assessment or to adopt or increase most property related fees or charges (though sewer, water, and refuse collection services are exempted from the election requirements). The Legislature passed Senate Bill 919 (Proposition 218 Omnibus Implementation Act) on the heels of Proposition 218 in order to make several clarifications to Proposition 218. These included that the voter approval process for assessments was to be called an “assessment ballot proceeding,” not an election, and that “assessment ballots shall be treated as disclosable public records . . . and equally available for inspection by the proponents and the opponents of the proposed assessment.” Cal. Gov't Code § 53753.

The Decision

In 2007, the Marin County Flood Control and Water Conservation District (“District”) proposed a new storm drainage fee to fund improvements to address the chronic flooding problems along local creeks. The District could not impose the fee without first obtaining voter approval pursuant to Proposition 218 because drainage is a property-related service. Affected residents received cardstock ballots in the mail to return with yes or no votes and the voter's signature as a declaration under penalty of perjury that he or she was authorized to vote on behalf of the identified parcel. The fee barely passed with 3,208 yes votes, 3,143 no votes and 1,708 invalidated votes.

One of the affected landowners, “Ford” Greene, filed a complaint challenging the fee on the ground that the signature requirement on the ballot violated the mandate that ballots in elections be kept secret. The District argued that Proposition 218 authorized fee elections to be conducted by “procedures similar to those for increases in assessments,” and that assessment ballots were disclosable public documents pursuant to the Proposition 218 Omnibus Implementation Act. The District prevailed at the trial court level, though Mr. Greene appealed. The First Appellate District reversed in favor of Mr. Greene, finding that the protections of Article II, section 7 applied to fee elections.

In a unanimous decision, the California Supreme Court reversed, finding that fee elections are best interpreted as requiring the low-level of secrecy that attends assessments. The Court first noted that though the secret ballot is an important protection of voters, it has not been applied to all elections outside of candidate elections and initiatives and referenda. The Court phrased the issue as “whether and to what extent the right to vote in secret set forth in article II, section 7 applies to the voting procedures set forth in a different and more recently enacted constitutional provision, article XIII D, section 6.” While section 4 of article XIIII D provides in detail the procedures for assessment ballots, the description contained in section 6 is brief. It states that a fee must be approved either by a majority vote of the property owners of the property subject to the fee or . . . by a two-thirds vote of the electorate residing in the affected area.” In addition, it states that “[a]n agency may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision.”

As noted by the First Appellate District, several of the requirements of assessment elections suggest that a nonsecret vote is authorized. The ballot must be one upon which “the owner may indicate his or her name, reasonable identification of the parcel, and his or her support or opposition to the proposed assessment.” (Art. XIII D, § 4, subd. (d).) While the First Appellate District indicated that there were several means by which this requirement could be followed without revealing the identity of the voter at any point, the California Supreme Court stated that “the question is not whether assessment balloting under article XIII D, section 4 could be done in a manner that protects secrecy. The question rather is whether section 4 requires secrecy” (emphasis in original). The ballot provided by the District did not violate the letter of the law, and therefore there was no basis for throwing out the results.

The California Supreme Court additionally discussed the influence of SB 919, passed immediately following voter approval of SB 919 to address section 4 procedures. Section 53753 provides that the secret ballot provisions of Article II, section 7 do not apply to assessment ballots. (§ 53753, subd. (e)(4).) Additionally, the statute provides that ballots must be signed, and was later amended to require that ballots be kept secret before tabulation, and are public documents afterward. ( Id ., subd. (c).) There was no dispute that the District maintained the secrecy of the ballot up until tabulation. In addition, the District informed the affected property owners that the ballots would only be made public under court order. As a result, the election maintained secrecy during the actual election, and was therefore in compliance with the secrecy requirements afforded to voters in fee elections.

Conclusion

The decision by the California Supreme Court restores the issue of voter secrecy in a fee election to roughly where it was prior to this case, and in doing so relieves local governments from a potential minefield. The procedure relied upon by the District in this case also now has a seal of approval from the highest court, giving local governments some confidence in going forward with fee elections if substantially similar procedures are adopted. In addition, the First Appellate District's Greene opinion had raised the issue that assessment proceedings should also be conducted in secret, a notion that has now also been laid to rest.