Peterson v. City of San Diego

GRODIN, J., Concurring.

Plaintiff voices a concern which I share. It is a concern with the integrity of the election process, and it extends beyond the proposition that voters should be free to cast their ballots in secret. As the Supreme Court of South Carolina has said, in an opinion striking down *232legislation which authorized a husband and wife to enter the polling booth together: “There is some authority for the proposition that secrecy is a personal right granted to the voter. We think, however, that the overriding purpose of the secrecy provision [in the South Carolina Constitution]1 is to insure the integrity of the voting process. It is calculated to secure privacy, personal independence and freedom from party or individual surveillance. It tends to promote an independent and free exercise of the elective franchise.” (State ex rel. Edwards v. Abrams (1978) 270 S.C. 87 [240 S.E.2d 643, 645-646].) Courts of other states have expressed similar views.2

Such concerns are implicated, I believe, in this state’s constitutional mandate that “voting shall be secret.” The problem is not simply one of purchasing votes, though a market in that commodity is far more likely if the buyer can see what he is getting. The problem includes the potential for more subtle forms of coercion. To the extent that important elections are conducted by means which permit persons other than the voter to observe the ballot as it is cast, it is inevitable that political and special interest groups will be tempted to “assist” voters in casting their ballots, perhaps at organizational parties at which the marking and mailing of ballots constitute a group activity. If permitting a husband and wife to be together in the polling booth violates a constitutional requirement for secret voting, can it reasonably be said that no constitutional question exists when the voter may be accompanied in the marking of his ballot by assorted friends and well-wishers?

To say that the constitutional mandate for secrecy in voting is implicated when votes are cast away from the polling booth is not to say that it is violated. I agree with the majority that the historical development of absentee voting in this state makes quite clear a constitutional intent to permit the Legislature discretion in providing for absentee ballots. Thus, I would not read article II, section 7 as an absolute requirement that all voting take place at the polling booth. Rather, I would read it as requiring that departures from that principle be justified in terms of the values of the election process.

In the case of absentee ballots, the fundamental nature of the right to vote provides the requisite justification. If a voter would for any reason have *233difficulty getting to the polls, a system which permits him to vote by absentee ballot serves that fundamental interest. At the same time, the relatively small percentage of voters who are likely to vote by absentee ballot in any election constitutes some safeguard against the risks inherent in voting outside the polling place.

The same justification does not exist in the case of mail ballots. So long as absentee ballots are available, one cannot speak meaningfully of a person’s right to vote being limited by having to go to the polls. Rather, the wholesale departure from polling place voting which mail balloting represents can be justified only by a different interest—the public interest in increasing voter participation. It is voter apathy, not disability, for which mail balloting is prescribed as an antidote.

I am prepared to accept that justification in this case, where what is involved is a special local election on an issue as to which legitimating consensus is both significant and difficult to obtain in an election conducted by traditional means. I therefore concur in the court’s opinion, but would reserve judgment as to the constitutionality of mail ballots in broader contexts.

Reynoso, J., concurred.

“All elections by the people shall be by secret ballot, but the ballots shall not be counted in secret. The right of suffrage, as regulated in this Constitution, shall be protected by laws regulating elections and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult, or improper conduct.” (S.C. Const., art. II, § 1.)

For example, Evans v. Reiser (1931) 78 Utah 253 [2 P.2d 615, 625] (“[a] person is not likely to enter into an agreement with a voter to pay for his vote unless such person has a way of ascertaining whether or not the voter has cast his ballot as agreed”); Clark v. Quick (1941) 377 Ill. 424 [36 N.E.2d 563, 566] (“[o]ur system requires not only that the ballot must be secret, but that the voter himself must be given no opportunity to satisfy some other person how he has voted”).