[annotations in brackets and in red by Harvie Branscomb 11/14/2011]
[ Ballots are not the property of individual voters. Ballots containing any secrets at all are unconstitutional if the marks (printed or hand marked) on them are identifiable to an individual. Colorado law does not call for "secret ballots"... it calls for anonymous untraceable ballots. Unfortunately this clerk and others are taking the position that they alone and their employees have the right to access and even hide such secrets. What they are saying is that they have not taken and are not taking the steps necessary to make the ballots anonymous. This is extremely troubling. ]
[ The clerks attempted the same thing in 2007 and were quickly rebuffed by the Colorado Senate who removed that portion of an election "cleanup" bill before passage. The Colorado Press Association and citizens lobbied successfully to keep the status quo - so voted ballots remained accessible to the public under Colorado Open Records Law, with appropriate safeguards for maintenance of physical ballot integrity.]
The clerks say a Colorado Court of Appeals ruling in August that ballots are public records has turned election law on its head and could allow someone to find out how people voted, no matter how careful clerks are in guarding voter secrecy. [ The Court of Appeals did not change any law - it merely clarified the appropriate interpretation, namely that ballots are public records and only those that are traceable to a voter must be withheld from the public. ]
But fixing the problem could be more problematic than most people think, Mesa County Clerk Sheila Reiner said. Reiner and Jefferson County Clerk Pam Anderson, who are facing identical lawsuits demanding to make their ballots public, say doing so would identify individual voters and how they voted. As a result, they think ballots should be made exempt from open-records laws. [ If Reiner and Anderson are holding ballots that are provably traceable, they have conducted an unconstitutional election. If they are holding back these ballots, they may be interfering with our rights to know the weaknesses of our own elections. Their procedures, and perhaps some less fortunate aspects of Colorado's law should be changed to make all elections compatible with the constitution. ]
“Secretary of State (Scott) Gessler is working on rules to accommodate this process, but we don’t believe the rules should be created because we don’t think the ballots should be made public record,” Reiner said. “What we’re asking the legislators for is a CORA exemption. This is a problem.”
Some people disagree, saying a balance can be struck that maintains election transparency without violating secrecy laws. [There is no "secrecy law" for ballots in Colorado. There is a requirement for "secrecy in voting to be maintained if voting devices are used. The constitutional provision for privacy of the vote is clear - make the ballots anonymous and then all of them are harmless public records that can provide the benefit of direct citizen oversight. Oversight by citizens and campaigns will help establish election credibility based on facts instead of the current public relations statements by clerks that typically rely upon a lack of complaints to demonstrate quality. Citizen verification becomes only more important when our election procedures have been almost entirely mechanized (electronic voting systems and electronic pollbooks) and heavily centralized ( extensive use, sometimes required, of mail-in ballots, the resulting heavy use of central counting, and also new voting methods employing early voting, vote centers and aggregated precincts). ]
Samantha Johnston, executive director of the Colorado Press Association, said there is an argument to be made for keeping ballots open records, and the press association is working with a coalition formed by Secretary of State Scott Gessler to find that balance.
“We wholeheartedly believe that voted ballots are a public record; however, we understand some of the concerns raised by the clerks,” she said. “We don’t have any answers yet, though.”
Current law allows anyone to get a list of Coloradans who cast their ballot, and by what method they used, such as mail-in or electronic voting machine.
Reiner said operatives for both major political parties routinely get such lists because they use them to track trends and to know which voters, by name, to target in the future.
The law requires the clerks to maintain a detailed record of each election, which is needed in case results are challenged or a recount is necessary. [ A detailed record of each election is required in order to know if the election is accurate. It is also necessary in order to be able to improve upon election weaknesses. More often than not, when citizens do take the time to investigate election practices they find problems that require solutions. The Saguache County election in 2010 is a clear example. (http://glassballotbox.org) ]
In 2007, the Legislature helped create the problem when it changed the law to require clerks to report by precinct. [ In 2007 the clerks attempted to have the CORA law amended to exempt voted ballots - such that there would be no access at all, including by decision of a court. Then Bill SB07-083 was amended to allow access by a court, and finally amended to remove from the bill the change to CORA when heavy resistance from the public and press was encountered. ]
The combined effect of those laws, coupled with the court ruling that allows people to get copies of the actual ballots, now makes it possible to see how individuals voted, Anderson said. [ The "combined effect of those laws" allows some voters choices to be revealed in current published election results. That is a problem of greater magnitude, yet it hasn't been reported. Clerks are falsely blaming the legislature for a problem that they ought to have long ago arranged to correct. They have had access to private information that they have no legal right to. The problem is principally with the failure to shuffle ballots between the time they are identifiable (e.g. when they are in signed envelopes) and when they are counted and reported. A secondary failure is due to combining special districts and statutory districts onto the same ballot page when these cause particular voters to vote on a very rare arrangement of contests that potentially identifies them. This is a clear violation of the Colorado Constitution. This kind of unusual ballot style isn't efficient and it does tend to reveal voter intent even in aggregate vote totals. All of this can be corrected by proper planning for the election, largely under the control of the election officials. ]
“When that precinct-reporting law was proposed, the clerk did testify, saying ... it would also erode the anonymity of certain voters,” said Anderson, who also is vice president of the Colorado County Clerk’s Association. “But how do we balance these values of transparency and accessibility and privacy? That’s what the legislation will need to address.” [ The clerks primarily did not want to report by precinct because it is inconvenient and expensive- if they were concerned about anonymity, they would have made a better argument at the time and arranged to achieve anonymous ballots, as the constitution requires. Yes, legislation should address how to achieve the requirements of the Colorado Constitution. ]
In ruling on a case from the 2009 mayoral race in Aspen, the court said digital copies of ballots are subject to the state’s open-records law and must be made public as long as they don’t identify who cast them. Aspen officials announced Friday that they plan to appeal that. [ Does Aspen's appeal becomes an argument in favor of the clerks' position? Colorado required all of Aspen's IRV cast vote records (digital representations of each ballot's pattern of votes) to be made public. In addition, Aspen arranged for the public to view all or most of the ballots in projections on election night and in a streamed television show. Aspen promised that everyone would be able to verify by counting the election themselves, but then failed to produce the CD that was made for the purpose of enabling citizen oversight. Aspen's particular experience is unusual and its attempt to overturn the unanimous Court of Appeals decision is inexplicable. ]
Regardless of the legal outcome of that case, clerks and other groups plan to continue meeting with officials in Gessler’s office to address the matter, either though rule-making or a bill in the Legislature.
Gessler spokesman Richard Coolidge said the Secretary of State’s Office is looking at several possible solutions, including what other states have done. [ I hope that citizen groups that do not also have the special interests of the Colorado County Clerks and Recorders are also being asked to the Secretary's table. I myself have not been asked, nor has either of the two groups I am affiliated with - Coloradans For Voting Integrity (http://cfvi.us) or Colorado Voter Group (http://coloradovotergroup.org). The Secretary's own think tank - the Best Practices and Vision Commission has previously refused to take up this issue. ]
Several have found a balance between maintaining voter secrecy while allowing public access to actual ballots, he said. [ "Secrecy in voting" is the operational phrase, but "voter secrecy" almost captures the intent. "Secret ballot" is an antiquated phrase that no longer applies to Colorado elections after a 1947 constitutional amendment called for removal of numbers on ballots that made each ballot traceable and led to the need for secrecy. After 1948, when Title 1 was enacted for county run elections, ballots became harmless public records that merited preservation for 25 months and access under CORA when it was enacted. That replaced a draconian requirement to keep ballots locked in a glass ballot box under three keys, and destruction by burning, shredding or burial 6 months after the election so the (valuable) ballot box could then be re-used. Unfortunately the legislature did not update the municipal law in Title 31, and left the draconian terms for ballot destruction for city election officials to deal with. It is this outdated law that forms the basis for Aspen's argument that ironically seeks to put a shroud of secrecy over all of Colorado's ballots. ]
Grand Junction Republican legislators Sen. Steve King and Rep. Ray Scott agreed that part of the problem stems from political parties, who find voting patterns invaluable information in running elections. Knowing who voted and when is helpful, but how people voted can give a campaign a tremendous advantage in targeting an election.
Still, both lawmakers agreed ballot secrecy shouldn’t be compromised to accomplish that.
“It becomes scary when you start talking about how we now have become so focused on (voter) patterns ... it gets right down to individual groups and eventually to individuals,” King added. “That’s politics.”
[ The Representatives might benefit from a read through the Colorado Revised Statutes and Colorado Constitution and note that "ballot secrecy" isn't among our laws. Citizen access to each ballot pattern and each scanned ballot is by far the most effective way verify and add credibility to an election. That transparency eliminates the need to rely upon the perfection of election officials including those who also run for the office of County Clerk and Recorder every four years. ]