-Aspen's historic May 5, 2009 IRV election audited as single ballots- 5/5/09 Aspen CO held an instant runoff election (IRV) for mayor and 2 council members. Interpreted contents of each ballot, scanned by True Ballot, were publicly released. Open records requests for a CD of image scans were denied. Aspen has been sued to protect records from destruction and to allow inspection of the scanned ballot files. A Court of Appeals ruling holds that unidentifiable ballots are public records.

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Friday, November 18, 2011

Lots of press coverage of the transparency issue in Colorado

By Katharhynn Heidelberg
[copy of full version shown below]

As a dispute over whether images of ballots are subject to public records law heads to the state Supreme Court, the county clerks in Montrose and other counties are doing all they can to keep citizens' votes private. 

They do not accept a recent Court of Appeals ruling that requires Aspen's city clerk to release digital copies of ballots cast in a 2009 mayoral race there. 

The race's unsuccessful candidate, Marilyn Marks, challenged under the Colorado Open Records Act the Aspen city clerk's decision not to provide her with the copies. Aspen, which had cited municipal election code and the potential for "substantial injury to the public interest," won at the district court level. An appeals court agreed with Marks, however: constitutional voter-secrecy requirements only protect a voter's identity, not the content of the ballot.

Earlier this week, Aspen filed a petition with the state Supreme Court to appeal the decision — but county clerks who see the Marks ruling as a threat to voter privacy aren't waiting to see how the high court moves on the issue. They want to at least strike a balance between public information and voter privacy.  "They're looking at all possible options. I know an exemption (from CORA) has been discussed; I believe that suggestion even came from one of the legislators," said William Mast, Montrose County assistant chief deputy clerk and recorder.  "I think they are mostly looking for middle ground, where individuals can feel comfortable with the process without necessarily giving up their voters' rights."

The fear is that a member of the public, using the ballot images in concert with other information, can identify unique ballots, thereby compromising the voter secrecy afforded by the state Constitution.  People could be coerced into marking their ballots a certain way in order to identify themselves — and therefore their votes — to others looking at the ballot images, Mast said. 

The practice of marking ballots to identify the person casting it is prohibited by the Constitution. So is inducing another to show how he or she marked a ballot.
If ballots are subject to CORA, the curious could use released ballots with information from elections database systems and different counties' business practices during audits. The combination could sound the death knell for voter secrecy, Mast said. "It wouldn't be a simple process, but with the public release of ballots and other publicly available information, the idea is, you could discern the identity of the voter," Mast said.
"It's a little bit different in a smaller area like Montrose than, say, Douglas County, where they have so many different districts and splits."

But there are still risks, Mast says, especially in small precincts such as Precinct 11, for voters in the northeastern Montrose County community of Maher. Those who make the drive to vote in person, as opposed to mail, could see their voter privacy compromised, were someone else to obtain copies of ballots cast in the precinct.  Though it is located in Montrose County, Maher votes on some Delta County districts and issues. It would therefore be quite easy to discern who the voters were by looking at the ballots from Precinct 11.  "We release our information based on precinct style and method," Mast said. "We think (privacy) is their right to keep. You can't do that when you release the image of an electronic ballot. They're vulnerable in that they live in an area with a small number of voters and choose to come in on Election Day.  "But I don't think anyone should have to choose their method of voting to protect their privacy. That seems unreasonable."

Mast added that clerks are also concerned with possible voter intimidation and vote buying.
"Coercion is always a concern. Given the political environment in Montrose County, it's a very real possibility," he said.  "There have been some contentious issues here in the past couple of years that we've had to face. You don't want to put people into a situation where they face those kinds of coercive pressures."

Practical steps can be taken, though, said Rich Coolidge, spokesman for Colorado Secretary of State Scott Gessler.  "What the secretary is doing is trying to find a practical solution where ballots can be made available while preserving the privacy that voters expect," Coolidge said.  Gessler is working with clerks and acknowledges concerns in certain precincts where, in limited circumstances, voters could be identified by ballot, he said. And there are certain ballots, such as those cast by overseas voters, that "absolutely" won't be released.  "We can put in safeguards to protect voters' privacy, but at the same time, there are large pools of ballots that can be made available," Coolidge said. "We've seen it done in other states and in other jurisdictions."

Mast said he understands each side's position, but he does not think ballot images should be made public.  "Individually, everyone casting a ballot knows what their ballot says. I don't believe (others) have any business knowing what their ballots said."

Mike Easterling
managing editor
Montrose Daily Press
(970) 252-7030

Identifiable anonymous ballots?

Letter to the Editor by Scott Writer

Boiling down the ballots (letter to editor by Aspen City Council member Torre)

On ballots, magic and transparency (letter to editor by Marilyn Marks, Marks v. Koch plaintiff)

Protect voter anonymity

Editorial By The Grand Junction Daily Sentinel
Tuesday, November 15, 2011


A response to the above editorial by Al Kolwicz (submitted for publication):

Dear Editor Silbernagel,
Here are some suggested corrections to your November 15th editorial, “Protect voter anonymity”.

The problem is not that ballots are public records. It is that Clerk Reiner is violating the state Constitution and has devised an election system that enables government to determine which voter cast a specific vote and/or a specific ballot. This is against the law, and an affront to the people.

A reasonably competent design would not have this flaw. It would ensure that votes and ballots are anonymous – as required by the Colorado Constitution.

Why, one might ask, does Mesa County’s election system have this obvious flaw, and more to the point, why is Clerk Reiner defending rather than seeking ways to remove the flaw?

Why do some county clerks want to exempt anonymous ballots from Colorado’s Open Records Act? Are they fearful that the public will discover more flaws in the system, for example are votes not being interpreted and counted correctly?

The state Constitution does not, as the editorial states, prohibit election officials from disclosing how any voter voted. It requires that votes and ballots be anonymous so that nobody, not even the election officials, can know how you voted.

If officials were permitted to know how individuals voted, the data could be leaked and the door would be open to voter coercion and intimidation. Reiner has confessed to the court that she collects data that can be used to find out how you voted, and shares this data with partisan canvass board appointees from the two major parties.

Do the voters of Mesa really want government officials, partisan appointees, and election workers to know how they vote? Government employees and people seeking government approvals or contracts will be hard pressed to vote their conscience knowing that government might use their vote against them.

No, the problem is not anonymous ballots as public records. It is Mesa County’s flawed and unconstitutional election system and Clerk Reiner’s unwillingness to accept responsibility for correcting the flaw.

Surely Clerk Reiner knows that, because she violates the Colorado Constitution, Mesa County elections can be voided. We don’t need this in 2012, or ever. It would be best if Reiner spent her time correcting rather than defending her illegal system. We are happy to assist.
Al Kolwicz
Colorado Voter Group
2867 Tincup Circle
Boulder, CO 80305

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