Not often do government officials get to bask in positive news.
"It's not the type of story that a reporter is generally looking for," admits Marilyn Marks with a laugh. But the Aspen-based elections activist says credit is due to El Paso County's clerk and recorder.
Marks is the founder of The Citizen Center, a nonprofit whose recent lawsuit against numerous elections officials, including Secretary of State Scott Gessler, alleges that thousands of Coloradans are being denied one of a free society's most basic rights: a secret ballot. Without a fix, she says, Colorado could find itself at the center of a national election scandal this November.
And El Paso County, she says, "is a model that others ought to follow."
Doing it wrong
At the heart of Marks' suit lies the claim that at least six counties are operating their elections in such a manner that it would be possible, even easy, for someone to link ballots to the voters who cast them. In some counties, she says, such as Larimer, ballots are "batched" together along with their envelopes; in others, such as Boulder, ballots are imprinted with barcodes.
Marks first realized the problem, she says, when she wanted to examine votes cast in her own unsuccessful mayoral bid in Aspen. Her Colorado Open Records Act request was denied by the city clerk.
"Their response was that we couldn't see voted ballots because they were traceable back to the voter," she says. "Well, I thought that they were making fun of me, pulling my chain."
Instead, the clerk went to court to defend the denial. Marks won on appeal, but her experience made her wonder about other counties. So she began making open-records requests around the state.
"And then we got the answer more and more consistently," she says. "It took months for my attorney and I to believe what we were seeing."
Article VII, Sec. 8 of the state constitution states, "All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it." (In isolated circumstances, voters such as soldiers overseas waive anonymity.)
Her suit also names Gessler because, in a response to a 2011 complaint, his office acknowledged the traceability of ballots, but appeared to favor limiting public access to them, rather than making systemic changes to ensure complete privacy.
If these problems are ignored, Marks cautions, voters in those counties might have legal standing to challenge their elections as unconstitutional. This could hold outcomes hostage in a lengthy court battle, or even force elections to be re-held.
In a 1964 case, an Arapahoe County election was nullified due to traceability of ballots.
"Can you imagine what a mess we would have?" she asks. "We could make Florida in 2000 look like they knew what they were doing."
Joshua Dunn, political science professor at the University of Colorado at Colorado Springs, says he finds the allegations in Marks' lawsuit "incredibly alarming."
"It's essential to fair elections, so therefore it's essential to a democracy," he says. "You would think that they should be able to design a system where it's impossible to identify."
Doing it right
Former El Paso County Clerk Bob Balink says he was shocked to learn some counties are imprinting ballots with identifiers. "It never should be that way, to drill down with some bar code," says Balink, now the county treasurer.
Current Clerk Wayne Williams says the ultimate goal is to balance transparency and privacy, and his chief deputy, Alissa Vander Veen, says their office goes to great pains to do so.
"You can walk down the hall and see what we're doing," she says, referring to windows showing rooms where ballots are counted and processed. "We've also set up our mail-ballot process so that our judges can't see whose ballot they are dealing with. ... Once the ballots are ready for counting, anything that is identifiable to those ballots stays in the pre-processing room, and they are boxed up."
She, Williams and Balink all note that in some ways, smaller counties have it tougher. As Balink puts it, "You can't believe that a small county clerk can have the same depth of knowledge of all the elections laws, or can work to establish the best practices, that the 15 or 20 people in our office can.
"But I guess that's the secretary of state's job, to ensure that they aren't cutting corners," he says. "There is no question that you should have more of these processes prescribed. ... You can't undo an election mistake."
Which goes back to Marks' concerns for November.
"It could be significant," Balink says, "especially if the outcome of an election is at stake. What if one of the larger counties was corrupted? It could go to the courts, and maybe the next president could be in office for a year or two before the courts decided he was illegally elected."
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