Opinion
Review Granted July 15, 1985.
Opinion on pages 1-74 omitted.
REVIEWS GRANTED
John E. Huerta, Los Angeles, for appellant and contestant.
Allard, Shelton & O'Connor, Gary C. Wunderlin, David M. Shell, Pomona, and Craig Mordoh, Los Angeles, for defendant and respondent.
Ernest Duncan, Alhambra, as amicus curiae on behalf of defendant and respondent.
DANIELSON, Associate Justice.
Bill Samora appeals from an order dismissing his election contest. We affirm the order.
FACTS
In a statement of election contest (Elec.Code, § 20050), Samora challenged the right of defendant Nancy J. McCracken "to fill and hold the office of Governing Board Member of the Pomona Unified School District," alleging that the precinct board, in conducting the election and in canvassing the returns, failed to count 354 absentee ballots which were delivered by third persons to polling places. Samora alleged on information and belief that the board thus made errors sufficient to change the result of the election. ( § 20021, subd. (e).) He sought an order directing the Los Angeles County Registrar Recorder to count the subject absentee ballots and declare him the winner of the election. ( § 20087.)
Unless otherwise indicated, all statutory references are to the Election Code.
In a supporting affidavit, Samora explained that he was one of five candidates for two vacancies on the five-member Governing Board of the Pomona Unified School District in the November 8, 1983 election. McCracken received 3,022 votes, for the second highest total. Samora received 2,699 of the votes counted. According to Samora, the overwhelming majority of the 354 uncounted absentee ballots were from Spanish-surnamed voters residing in South Pomona, and, if counted, would likely result in his receiving more votes than McCracken, and thus supplanting her as a Governing Board Member.
[213 Cal.Rptr. 519]Margarita Echavarria, chairperson of the Pomona Citizens Voter Registration and Education Project, stated in her affidavit that in August, 1983, an employee of the Absent Voter Division of the Registrar-Recorder's Office in Commerce indicated to her that absentee ballots could either be mailed back to the Registrar-Recorder's Office or be delivered to any polling place within the jurisdiction. Echavarria claimed she asked if she or other members of her organization could deliver the signed identification envelopes containing voted ballots to the polling place. The responding employee indicated voted ballots could only be received at polling places within Los Angeles County, but did not inform her that third-party deliveries were not permissible. Echavarria stated, further, that none of the printed absentee voter information provided by the Registrar-Recorder's Office proscribed third party delivery of ballots to polling places.
McCracken filed a demurrer seeking, alternatively, an order dismissing Samora's election contest for failure to state grounds therefor, or judgment on the pleadings.
On January 9, 1984, the trial court entered its order of dismissal pursuant to Code of Civil Procedure section 581, subdivision (3), (now subd. (c)).
ISSUE
The sole question presented on this appeal is whether an absentee ballot may be delivered to the polling place by a person other than the voter.
DISCUSSION
Section 1013, enacted in 1976, provides:
"After marking the ballot, the absent voter may return it to the official from whom it came by mail or in person, or may return it to any member of a precinct board at any polling place within the jurisdiction. The ballot must, however, be received by either the official or the precinct board before the close of the polls on election day.
"The official shall establish procedures to insure the secrecy of any ballot returned to a precinct polling place."
In Fair v. Hernandez (1982) 138 Cal.App.3d 578, 188 Cal.Rptr. 45, the court held that section 1013 means the absentee ballots "must be returned personally by the voter without the use of another person or agent", stating, at page 582, 188 Cal.Rptr. 45:
"Although this interpretation is not completely free of difficulties, a common sense approach to the reading of the statute requires this result. First of all, it is clearly the purpose of the statute to preserve the secrecy, uniformity, and integrity of the voting process. [Citation.] Requiring personal delivery of the absentee ballot by the voter avoids potential problems affecting the secrecy, uniformity and integrity of the absent voter's franchise.... '[P]reservation of the integrity of the election process is far more important in the long run than the resolution of any one particular election.' [Citation.] This important policy is admirably served by the interpretation we have placed on the statute."
The court noted that its conclusion was supported by a decision of the Attorney General, who, after comparing the language of section 1013 with that of section 1017 providing for delivery of an absentee ballot by an authorized representative under certain special circumstances, concluded that " 'if the Legislature intended to include delivery by an authorized representative in section 1013 it is reasonable to conclude it would have done so.' (62 Ops.Cal.Atty.Gen. 439, 443 (1979).)" (Fair v. Hernandez, supra, 138 Cal.App.3d at p. 582, 188 Cal.Rptr. 45.)
These special circumstances include confining illness or disability, physical handicap resulting in denial of physical access to the polling place or voting apparatus, and inability to reach the polling place because of conditions resulting in absence from the precinct on election day.
Clearly the option of authorizing an absent voter to have the ballot delivered to the appropriate official or polling place by an authorized representative had not escaped the attention of the Legislature.
[213 Cal.Rptr. 520]The court also cited the decision in Beatie v. Davila (1982) 132 Cal.App.3d 424, 183 Cal.Rptr. 179, where the court considered the question why the Legislature would " 'require the voter to deliver his absentee ballot personally to the elections official and yet allow him to utilize a third party for mailing it to the official' " (Fair v. Hernandez, supra, 138 Cal.App.3d at p. 582, 183 Cal.Rptr. 179), and concluded that " '[t]he Legislature recognized the impossibility of policing the act of mailing by the absentee voter....' (Id. [132 Cal.App.3d] at p. 429 [183 Cal.Rptr. 179].) Thus, for practical reasons, delivery by mail might be made by a third party, but implicit in the argument in the statute is the requirement that delivery 'in person' means personal delivery, since personal delivery can be policed." (Fair v. Hernandez, supra, 138 Cal.App.3d at p. 582, 183 Cal.Rptr. 179.)
In Peterson v. City of San Diego (1983) 34 Cal.3d 225, 193 Cal.Rptr. 533, 666 P.2d 975, our Supreme Court held valid an election conducted exclusively by mail ballot. (Section 1340, et seq.) In so deciding, the court traced the history of the constitutional provisions governing voting, noting that for many years, the provision for absentee voting and the secrecy provision were both in the California Constitution. Until 1972, article II, section 5 "gave the Legislature broad authority to regulate the method of voting, ..." (P. 228, 193 Cal.Rptr. 533, 666 P.2d 975.) In that year, the absentee voting provision was deleted from the Constitution at the instigation of the Constitution Revision Commission, "because provision for absentee balloting should be regulated by the Legislature...." (P. 231, 193 Cal.Rptr. 533, 666 P.2d 975.) However, the constitution still mandates that "[v]oting shall be secret." (Cal. Const., art. II, § 7.) The Peterson court noted that the secrecy protections provided by the Legislature for both "absentee voting in polling place elections and voting by mail in all mailed ballot elections are substantially the same. In absentee voting the voter must apply for a ballot. The voter marks the ballot and returns it in person or by mail to the clerk or to a precinct polling place. ( §§ 1002, 1013-1014.) In mailed ballot elections the clerk mails each voter a ballot, and the voter marks it and returns it to the clerk by mail or in person or may mark it in the clerk's office and leave it with the clerk. Elections Code section 1350 requires that mail ballot elections be conducted in accordance with the procedures used for absentee voting." (Peterson v. City of San Diego, supra, 34 Cal.3d at p. 228, 193 Cal.Rptr. 533, 666 P.2d 975.) (Emphasis added.)
Our Supreme Court thus made it clear that regulation of absentee voting is a function of the Legislature, and that the Legislature has enacted statutes requiring that in both absentee voting and in mailed ballot elections, the voter marks the ballot and returns it, by mail or in person, in the case of absentee voting, to the clerk or to a precinct polling place, and in mailed ballot voting to the clerk.
We agree with the court's statement in Fair v. Hernandez, supra, 138 Cal.App.3d 578, 583, 183 Cal.Rptr. 179:
"Reason and authority both support the judgment of the trial court that delivery by ... third [persons] to the [polling places] was improper under the statute. The rule requiring personal delivery clearly serves the paramount purpose of preserving the secrecy, uniformity, and integrity of the voting process."
DECISION
The order dismissing Samora's election contest is affirmed.
KLEIN, P.J., and LUI, J., concur.
In 1973 the Legislature passed AB 1541 which would have authorized an absent voter to have the ballot returned to the appropriate election official or to the polling place by a person other than said absent voter. That bill was vetoed by the Governor, later stricken from the file, and no action was taken to consider the Governor's veto. (Assembly Final History, 1973-1974, p. 861.)
In 1975 a similar bill, AB 397, was introduced, which would have authorized an absent voter to have the ballot returned to the appropriate election official or to the polling place by a person other than said absent voter. That bill was placed on the inactive file on motion of its author. No further action was taken and the bill died on the inactive file. (Assembly Final History, 1975, p. 303.)