Gary Harmon’s Saturday report – “Judge says ballots with bar codes OK for elections; Voter activist stunned by ruling” – should “stun” not only “voter activists” but the voting public as well.

Because she sought a Preliminary Injunction based on a matter of “first impression” in the federal courts, Marilyn Marks faced substantial legal hurdles in advocating the right of all Coloradans – and indeed of all Americans – to vote by secret ballot.

Judge Arguello conservatively interpreted existing law by ruling, first, that no voter has “standing” to challenge the non-secrecy of elections in a federal court until after they prove that they have been demonstrably injured by the lack of ballot secrecy.

However, the whole purpose of the “secret ballot” was prophylactic – to remove the very possibility of linking voters’ identities to their ballot choices.  Historically, the mere fact that election officials are sworn to that secrecy has not proved sufficient to prevent abuse.

Moreover, having already decided that she didn’t have jurisdiction to reach the merits of Marks’ federal claims, Judge Arguello nevertheless ruled from the bench – without as yet publishing a written opinion – on substantive issues of both state and federal law.

Thus, either those rulings were “mere dicta” by a judge who lacked jurisdiction to so rule, or the decision as to “standing” was influenced by superficial interpretations of Colorado law (which could have been referred to the Colorado Supreme Court for decision) and/or by the mere fact that no federal court has as yet confronted the “secret ballot” question.

While Marks awaits a written opinion and considers her legal options, others – such as the Tea Party group “True the Vote and election law scholars – should carefully consider the implications of the ruling.

As of today, the Colorado Constitution’s mandate for “anonymous” and “unidentifiable” ballots is being interpreted to mean that Coloradans have no constitutional right to a truly “secret ballot”.

Bill Hugenberg