Commissioners should encourage county clerk to settle ballot lawsuit
Among important issues facing the Mesa County commissioners in the waning months of two members’ term are the legal entanglements between the county and Marilyn Marks of Aspen, who is an advocate for transparent elections.
Denied the right to review ballots after an unsuccessful run for mayor of Aspen, Marks was shocked to learn it was common practice in Colorado for county clerks to deny citizens access to ballots to verify reported vote tallies because it is possible to link some individual voters to their ballots.
“The right to a secret ballot is a revered principle of American democracy. No one, most particularly government officials, should have access to information that can connect ballots with voters,” Marks said recently.
She sued Pitkin County, claiming her rights were violated when she was refused permission to review the ballots. The ballots in question were electronic images from voting machines that were supposed to be anonymous and untraceable.
After losing at the district court level, Marks appealed and won the right to review the ballots. She was also granted her attorneys’ fees.
Pitkin County appealed the case to the Colorado Supreme Court which declined to hear it, leaving the appellant court decision in place.
The Supreme Court decision not to review the Pitkin County ruling affirms the right of Colorado citizens to a truly secret ballot, and their right to inspect ballots to verify the results prior to certification of the election.
To test the constitutionality of empowering County Clerks to prevent access to voted ballots, Marks filed a CORA (Colorado Open Records Act) requests to inspect ballot results in Mesa and Jefferson County elections.
After refusing to fully comply with Marks’ request for access to ballot images, Mesa County Clerk Sheila Reiner and Jefferson County Clerk Pamela Anderson simultaneously petitioned for judicial protection under CORA for their policy of prohibiting citizen review of election results.
Their justification was that the “secret ballots” voters cast were, in fact, not secret. In some circumstances, ballots could be linked to certain individual voters.
The process of identifying individual voters was not difficult. In October 2011, Reiner and Larimer County Clerk Scott Doyle showed how ballots and voters could be linked in certain circumstances. Soon after, Reiner demonstrated the process for some Mesa County citizens who questioned her on the topic.
The Jefferson County case was settled in April, when a judge ruled against plaintiff Anderson. Marks was awarded her attorney’s fees which will amount to nearly $100,000.
The financial stakes were even higher in Pitkin County. There Marks was awarded almost $200,000 in attorney fees by the Court of Appeals.
The Pitkin County commissioners recently decided to ask the Supreme Court for reconsideration of their case. If Marks prevails again, the cost to the county will be even higher.
The outcome of the Jefferson County and Pitkin County cases does not bode well for Mesa County.
The common thread among all these cases is the ability of county clerks to identify individual voters by reviewing “anonymous” ballots.
This problem could be solved by shuffling the ballots into a random order, but the county clerks, backed by their statewide organization, has resisted this solution.
Extricating Mesa County from Reiner’s lawsuit should be a goal for the present county commissioners. The newly elected members will have enough to deal with without pursuing an apparently losing case through another court.
In fact, the new county commissioners may have their own Marilyn Marks issue to deal with.
Marks filed a federal lawsuit against Secretary of State Scott Gessler and several counties, including Mesa, last February.
In that lawsuit, Marks asked the federal court to correct Colorado “election practices in order to restore voters’ federal constitutional rights” and to uphold “the state constitutional right to vote a secret (anonymous) ballot, without which those federal constitutional rights cannot be freely exercised.”
All Colorado voters should support Marks’ effort to reform a broken election system. And Mesa County commissioners should explain why they should devote more county resources to perpetuating a system that rejects the principle of secret ballots as the foundation of free and fair elections.