Secret Ballot Required In Prop. 218 Fee Elections

Article XIII D, Section 6(c) requires that local governments obtain electoral approval of certain property-related fees. But it does not spell out the procedures for such elections, other than to provide that local governments "may adopt procedures similar to those for increases in assessments in the conduct of elections under this subdivision." In Greene v. Marin County Flood Control and Water Conservation District (here), the court held that the secret ballot requirement contained in Article II, Section 7 ("Voting shall be secret") applies to fee elections under Article XIII D, Section 6(c). It then invalidated an election upholding a fee where the voters had not been assured that their ballots would be secret.

The opinion is pretty straightforward and seems to reach the right result, given the unqualified command of Article II, Section7, and the lack of any good reason not to have a secret election. The only troublesome part of the opinion is the court's holding that a secret ballot furthers the tax-limitation goals of Proposition 218. The court said that "[s]ecrecy in voting enhances free taxpayer consent to approve or reject a proposed fee in the face of local controversy about its merits and it makes it more difficult for government to extract revenue from unwilling taxpayers. Therefore, in liberally construing Proposition 218 to further its purposes, we construe the terms 'election' and 'voting' to mean secret voting." Given the anti-tax proclivities of the California electorate, this seems like a stretch, but it's utterly unnecessary to the opinion.