State High Court Could Set Guidelines : Case May Affect Handling of Absentee Ballots

Times Staff Writer

Advocates of a move to incorporate a nearby suburb, seeing that the elderly residents of a retirement home were so disabled that they could not fill out their absentee ballots, took the ballots in hand and completed them.

Another campaign worker hand-carried other absentee ballots to the county clerk's office. As it turned out, the absentee vote made the difference, swinging the 1983 election in favor of incorporating East Palo Alto, a working-class area 25 miles south of San Francisco.

The ballot practices in East Palo Alto, increasingly common as absentee balloting becomes more heavily used, led to a challenge that reached the California Supreme Court on Monday. The case has drawn significant interest because the court could set guidelines for handling absentee ballots. An opinion could be rendered before the November, 1986, elections.

Vote Considered Pivotal

Voting rights advocates argue that the use of absentee ballots is pivotal to their efforts to encourage voting in low-income areas and among the elderly, but at a hearing Monday several justices indicated uneasiness with the techniques.

"Isn't there the inherent possibility of intimidation?" Justice Joseph Grodin asked one of the lawyers defending East Palo Alto's incorporation move.

Noting that absentee votes are important in many local elections where turn-out is low, Grodin pressed, "Do we really want people from one campaign headquarters going around . . . and physically helping them?"

The justices appeared interested in creating guidelines for future cases, prompting Paul (Pete) McCloskey, lawyer for opponents of incorporating East Palo Alto, to suggest that outsiders should be allowed to assist only if the voter requests help.

Small Winning Margin

In East Palo Alto's case, with 3,500 votes cast, the absentee vote was 183 to 89 in favor of incorporation. Cityhood won by 17 votes. East Palo Alto has been a city since the election two years ago.

McCloskey, a former Republican congressman from Palo Alto, said pro-incorporation campaign workers helped to both distribute and return absentee ballots. One worker hand-carried 97 ballots to the San Mateo County clerk's office from voters, many of whom were disabled, blind and elderly. In some instances, a candidate for City Council who supported incorporation and won election to the council helped elderly residents of a retirement home fill out their ballots.

McCloskey called the tactics a "clear violation" of the constitutional command that voting must be secret, and pointed to a statute aimed at preventing ballot-tampering that says third parties may not deliver ballots on behalf of voters. He urged the court to order a new incorporation election.

Ensuring the Vote

Pro-cityhood forces said their use of absentee ballots ensured that poor, elderly and disabled people would be able to vote.

"A voter has a right to secrecy, but the voter also has a right to vote," said attorney Thomas R. Adams, arguing that the election results should stand.

He pointed out that the trial judge, after hearing 100 witnesses in a lengthy trial, ruled that there had been no voter fraud, forgery or ballot-tampering. A state Court of Appeal overturned the lower court earlier this year before the Supreme Court decided to hear the case.

Several groups have filed motions on behalf of supporters of the incorporation.

"Expansion of the franchise by absentee ballots is an important vehicle for the exercise of that right (to vote)," the Mexican American Legal Defense and Educational Fund said.

John Huerta, who represented the fund, is handling another case before the high court involving a refusal by election officials to count more than 350 absentee votes in a Pomona school board race in which a Latino candidate lost by 320 votes.

He said that while Republicans traditionally have made heavy use of absentee ballots, their use has only recently become important to efforts to increase voting by Latinos.

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