By Bob Egelko, San Francisco Chronicle, October 19, 2004
The state Supreme Court has ordered a judge to review a challenge by overseas voters to a new California law that allows them to vote by fax as long as they agree to give up their right to a secret ballot.
However, the court, in an order Friday, said it would allow the law to stay in effect for the Nov. 2 election. A lawyer for the three voters who filed the suit seeking a court order removing the privacy waiver from the law said Monday he may go to federal court to seek pre-election review.
Although using a fax machine lessens secrecy to some degree, "your vote could be counted by fax without your giving up your privacy'' if protective measures were required, said the attorney, Scott Rafferty. He contended the notice sent by the state, telling fax voters that "your vote will no longer be secret,'' is intimidating and could discourage voting.
But Tony Miller, special counsel to Secretary of State Kevin Shelley, said the law gives military personnel and other overseas Californians another option for voting, one that is quicker but inherently less private than mailing their ballots.
"When you fax a ballot, you risk having your privacy compromised,'' Miller said. "It's appropriate that voters understand that. ... Election officials have developed procedures to help assure the confidentiality of the ballot.''
There is controversy about steps taken at the national level to facilitate overseas voting. The Pentagon canceled a plan for Internet voting by military personnel in February because of concerns about security of the votes, and drew criticism last month when it briefly restricted access to a Web site containing ballot forms.
Democrats -- among them Rafferty, the lawyer in the California suit -- have also complained that Omega Technologies, the contractor that receives faxed ballots from a toll-free Pentagon service and routes them to local registrars, is headed by a member of the National Republican Congressional Committee's Business Advisory Council.
The state law, signed three weeks ago by Gov. Arnold Schwarzenegger, made California the 23rd state to allow residents abroad to vote by fax. It requires those voters to sign a waiver of their right to a secret ballot -- a right guaranteed by the state Constitution since 1879.
The state's high court, in its order Friday, said issuing a directive staying the law before the Nov. 2 election would cause "undue confusion and uncertainty in the election results.'' But the justices told a Sacramento County Superior Court judge to consider the suit after the election.
The case is Bridgeman vs. Shelley, S128311.