Wilks

Appellants seek to invalidate a municipal incorporation election on the ground that there were irregularities in the handling of certain absentee ballots. The trial court found that there had been no violation of any mandatory provision of the Elections Code or tampering with or fraud involving the ballots, and it confirmed the passage of the incorporation measure. We agree.

On June 14, 1983, the San Mateo County Board of Supervisors declared that a measure to incorporate the community of East Palo Alto had passed by a margin of 15 votes: 1,782 voters being in favor and 1,767 opposed. Two hundred seventy-two votes were cast by absentee ballot; these ballots favored incorporation by a ratio of nearly two to one. Appellants filed a statement of contest on grounds of misconduct by election officials and illegal voting, challenging 147 votes. In addition, the County of San Mateo filed a statement contesting three votes on residency grounds. The trial court rejected appellants’ challenges to all but five votes which were cast by nonresidents. The court also invalidated the three votes challenged by the county, and confirmed passage of the incorporation measure by a margin of…

In my concurring opinion in Peterson v. City of San Diego (1983) 34 Cal.3d 225, 231 [ 193 Cal.Rptr. 533 , 666 P.2d 975 ], I expressed concern, based upon the state constitutional mandate that “voting shall be secret,” with forms of election which permit persons other than the voter to observe the ballot as it is cast. The problem inherent in such systems, I suggested, “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. . . . [I]t 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.” (Id., at p. 232.)

This case presents a vivid illustration of the problem I described. In a local election, with a small and almost equally divided electorate, a number of ballots three times greater than the margin of ballots counted were cast by absentee voters in the presence of or with the assistance of campaign partisans, one of whom was actually a candidate, and under…

THE COURT. [*]

Appellants seek to invalidate a municipal incorporation election on the ground that there were irregularities in the handling of certain absentee ballots. The trial court found that there had been no violation of any mandatory provision of the Elections Code or tampering with or fraud involving the ballots, and it confirmed the passage of the incorporation measure. We agree.

On June 14, 1983, the San Mateo County Board of Supervisors declared that a measure to incorporate the community of East Palo Alto had passed by a margin of 15 votes: 1,782 voters being in favor and 1,767 opposed. Two hundred seventy-two votes were cast by absentee ballot; these ballots favored incorporation by a ratio of nearly two to one. Appellants filed a statement of contest on grounds of misconduct by election officials and illegal voting, challenging 147 votes. In addition, the County of San Mateo filed a statement contesting three votes on residency grounds. The trial court rejected appellants' challenges to all but five votes which were cast by nonresidents. The court also invalidated the three votes challenged by the county, and confirmed passage of the incorporation measure…