Imagine an election where a proposal to increase taxes is declared by the taxing agency to have passed with fewer than 70 votes after the agency disqualified more than 1500 ballots that would have swung the election the other way. Then imagine that the decision to invalidate these ballots was made by the agency after opening them and seeing how they had voted. Now imagine that the ballots were invalidated because the agency wanted voters to identify themselves alongside their vote and these 1500-plus voters refused based on their constitutionally protected right to voter secrecy. Finally imagine that the public and press ask to inspect the unidentified ballots but the agency denies their request because it says it would violate the voters’ right to secrecy!
Here in America it is difficult to imagine this occurring because we have long enjoyed fair elections conducted via secret ballot and counted by a disinterested official. In 2007 however this very scenario unfolded in a local election on flood control fees in Marin County. The Howard Jarvis Taxpayers Association reacted by sponsoring a bill in 2008 that would have made fee ballots confidential but government lobbyists persuaded legislators to kill the bill.
Meanwhile Ford Greene an attorney and Fairfax City Council member filed a lawsuit against the Marin County agency challenging the election results and the new tax. The Court of Appeal agreed with Greene that requiring voters to sign their ballots violates their constitutional right to a secret ballot. The Court in Greene v. Marin County Flood Control District threw out the election and invalidated the new tax. However the District petitioned the California Supreme Court to review the case and review was recently granted.
The pending litigation meant that Jarvis could not reintroduce its ballot secrecy bill in 2009. However the Marin election also pointed out the need to have a disinterested party count the votes in elections on proposed fees and assessments. To address that need the Jarvis Association joined with Senator John Benoit in 2009 to introduce SB 321.
In California thousands of local government "districts" have been formed to serve specific community needs. These include districts that provide streetlights fire protection water service public landscaping mosquito abatement libraries and cemetery management. Local districts can levy fees on their customers and taxes or assessments on the property owners within their districts to pay for these services. Proposition 218 another Jarvis sponsored initiative enacted in 1996 requires new taxes and assessments and most fees to be put to a vote through a mailed ballot election.
SB 321 contains a number of necessary reforms aimed at increasing voter participation in fee and assessment elections and making the mailed ballot procedure more transparent and better protected from conflicts of interest. Among those reforms is a requirement that an impartial person count the votes. The ballots must remain sealed until opened and counted at the public hearing. Because voters frequently discard mailed ballots mistaking them for junk mail SB 321 also includes a requirement that the envelope containing the ballot bear the words "OFFICIAL BALLOT ENCLOSED" in at least 16-point bold type. Finally the ballots and the key for determining the value of weighted ballots must be retained for two years and are subject to public inspection under the Public Records Act.
These reforms will enhance the integrity of the local election process. Voters should have the right to know their ballot is counted in public and not behind closed doors of the measure’s proponents. With hundreds of these elections occurring statewide it’s important to set guidelines that guarantee transparency and protect taxpayers.
SB 321 is currently awaiting approval by the full bodies of both legislative houses then it will move to Governor Schwarzenegger for action.
Jon Coupal is president of the Howard Jarvis Taxpayers Association California’s largest grassroots taxpayer organization dedicated to the protection of Proposition 13 and the advancement of taxpayers’ rights.