Marks’ lawsuit onballots is premature

Aspen resident Marilyn Marks has been making her concerns about Colorado’s voting process known for some time, both in legal venues and public forums. We don’t agree with all of her efforts, but we recognize that she has raised some valid concerns about ballot security and voter anonymity.

However, the federal lawsuit that she and her nonprofit group, Citizen Center, filed Monday over ballot security is premature, both from a legal and a public-policy standpoint.

Marks’ group filed the lawsuit against Secretary of State Scott Gessler and a handful of county clerks, including Mesa County Clerk Sheila Reiner. The lawsuit alleges that the way the ballots are counted and handled in these counties makes it possible for elections officials and others to potentially determine how some individuals voted.

Indeed, Reiner demonstrated to The Daily Sentinel how that might occur — if a request from Marks or other ballot challengers were approved, allowing them to view ballots after they have been cast in an election.

But Reiner has steadfastly maintained that it is a combination of state and federal laws related to how her office must handle ballots that makes it possible to potentially track an individual ballot and surmise how that person’s vote was cast.

Marks argues that Reiner and other clerks could change their processes to prevent ballot tracking and protect voter anonymity. She said several counties already have done so.

There does, in fact, appear to be confusion over how various counties handle their ballots, and that needs to be clarified.

But there is little disagreement on one point. There is no evidence that any county clerk or election official in Mesa County or any other part of Colorado has used the existing process to illegally find out how an individual voted.

Even Marks and her attorney said as much while discussing the lawsuit.

And that’s the legal problem with Marks’ lawsuit. No one has yet been harmed by the acknowledged problems with ballot handling. There’s just speculation such injury could occur.

It will be tough for Marks and her group to prove they have standing — that there is a case or controversy — to bring this legal challenge when they can’t demonstrate they, or anyone else, has been harmed to date.

From a policy standpoint, the lawsuit jumps the gun because the Colorado Legislature is contemplating legislation to correct the problems that exist with laws governing ballot handling and ballot security. That legislation is being developed with input from Marks, the county clerks and others.

There is certainly urgency to get that legislative effort completed before Colorado’s primary election in June. But Marks’ federal lawsuit could complicate and delay needed changes, not clarify the situation.

We hope Marks’ lawsuit is stayed or swiftly dismissed and other avenues for correcting problems are allowed to proceed.


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