Bridgeman

Bruce McPherson, as Secretary of State of the State of California (the Secretary), appeals from a judgment and peremptory writ of mandate requiring the Secretary to refrain from enforcing the portion of Elections Code section 3103.5, which requires a special absentee voter to sign an oath “that by returning my voted ballot by facsimile transmission I have waived my right to have my ballot kept secret.” (§ 3103.5.) Following a hearing on a petition for writ of mandate filed by Theresa Bridgeman, Edwin Lau, and John Doe (the voters), the trial court concluded the oath violated California’s constitutional provision that “[vjoting shall be secret.” (Cal. Const., art. II, § 7 (article II, section 7).) Because the oath could not be severed from the statute, the trial court ruled ballots cast by facsimile (fax) under section 3103.5 cannot be counted.

The Secretary appeals.

We shall conclude the constitutional guarantee of secret ballot must be balanced against the constitutional right of voters to cast a vote. We further conclude we should respect the Legislature’s determination that fax voting is necessary to allow some voters overseas to vote in California. This is…