-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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Monday, February 13, 2012

CItizen Center sues Colorado Secretary of State and 6 county clerks

Read the actual court complaint as filed here: CitizenCenter_complaint_as_a_pdf

A new non-profit in Colorado sues SOS and 6 clerks over unconstitutional ballot traceability. Supportive documentation is located here: http://bit.ly/citizencentersuit

I learned only at the last moment of this project by The Citizen Center http://thecitizencenter.org (a new non-profit organized recently by Marilyn Marks) to bring  a suit in federal court against 6 Colorado counties' clerk and recorders as well as the Secretary of State and saw this specific information this morning. 

The counties include Eagle county, the county where I live and often serve as Canvass Board member. A number of county clerks (but not all) included in the suit have published specific details of the traceability of ballots apparently for the purpose of supporting arguments that ballots should be kept private to election officials and not made available to the public. An approach that acknowledges traceability and fails to achieve anonymity of ballots appears to be inconsistent with two constitutions. That is I believe the basis of the argument this suit will make.

It is my understanding that legislative changes and Secretary of State rules are preferable as a means for achieving effective anonymity and to protect election officials from rare instances out of their control where anonymity might not be absolutely achieved. What are not acceptable are changes that stand in the way of the public understanding its election through access to materials such as anonymous ballots.  Colorado open records law should not be hobbled in a manner that could perpetuate traceability of ballots. 

Factors included in Colorado's apparent trend away from anonymity of ballots are the high percentage of mail-ballots that are handled and tabulated in central locations and the proliferation of special districts that do not honor precinct lines and new requirements to tabulate certain ballots later than election day.

Coordination of ballot questions from these special districts onto general election ballots causes precinct splits that result in many distinct ballot styles being printed.  An example of reasonable new legislation would set a threshold number minimum number of electors for whom an election official could print a different ballot style. This minimum would assure that the mere form of the printed questions on the ballot would not assist in identifying the elector. Traceability of voter intent in published election results because of unique ballot styles can be vastly reduced.   Contests from districts that are based on precincts can be reported by precinct but all contests that are from districts that cross precinct lines could be printed on a separate independently tabulated page and not reported by precinct.  This would end a major means of tracing the identity of the voter of a voted ballot that several clerks have reported on.  This separate tabulation of pages would be a reasonable reaction to the recent Colorado trends in complex ballot styles and to this federal case.
My effort to be a part of meetings to discuss various solutions like these- solutions that ought to make federal suits like this one unnecessary- have thus far failed despite efforts by Senator Rollie Heath to bring the interested parties together. Instead it is presumed that the resulting legislation will try to solve a problem the clerks have said arose when the Appeals Court found that Colorado law makes voted ballots a matter of public record. In fact the appeals court allows election officials to make exceptions of those specific ballots that are not anonymous.

I would hope that Colorado statute and rules will call for full transparency about how many ballots are excepted and why they are excepted so that we may incrementally move towards fully anonymous ballots.  Of course the Appeals Court did not introduce any new law, they merely unanimously supported existing law, a law that also was under discussion via bill 083 in the Senate in 2007 that would have exempted voted ballots from open records requests.  That 2007 statutory language failed to leave the Senate after resistance was mounted by citizens and press in Colorado. I was one of those citizens. The result left the status-quo in place - access to ballots as public records.

So this discussion is not new, and did not start in Aspen Colorado over its May 5 2009 IRV election.  It is not only Marilyn Marks' agenda. It is a foundational principle of election quality that ballots remain anonymous once they are cast, and that these records may therefore verified by the public without impinging on crucial privacy of the voter, in Colorado referred to as "secrecy in voting". 

Ballots are to be voted in private, cast as anonymous and counted in public.
Litigation is clearly not the best way to achieve good public policy. Litigation produces unnecessary conflict and expense.  It is so expensive that it is out of reach of the common citizen.  However experience shows that persistent and humble approaches to those in responsible positions- legislators, secretary of state and staff, clerk and recorders, attorney general, district attorneys and more has not brought about a satisfactory resolution or even much indication that such a resolution will come about.  Therefore, I can understand why this litigation is called for.

Harvie Branscomb 2/13/2012

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