Protect voter anonymity
If a September decision by the Colorado Court of Appeals, determining that voted ballots are public records, stands there’s a good chance some political operative may be able to determine how you voted.
At first blush, that seems unlikely. After all, a voter’s name isn’t on the ballot he or she casts, only on the outside envelope of a mail-in ballot. How is someone going to identify a voter from a ballot with no name on it?
But Mesa County Cerk and Recorder Sheila Reiner demonstrated to The Daily Sentinel editorial board Monday that it is not difficult to track an anonymous ballot to the voter who cast it.
Comparing a ballot with a variety of other information available to the public — the precinct it is from, the date it was cast, the vote center where it was cast or the batch of mail it arrived with and the batch it was counted with, allows an examiner to track a supposedly anonymous ballot and connect it with an identified voter in most instances.
Reiner is at the center of this issue because she is one of a handful of county clerks in Colorado who is in a legal battle with Marilyn Marks of Aspen. Marks has demanded that voted ballots be made available for public inspection, ostensibly to ensure they were counted correctly.
It was similar action by Marks, related to an Aspen municipal election, that led to the Colorado Court of Appeals ruling Sept. 29 determining that voted ballots are public records and subject to the Open Records Act. An appeal of that decision is expected to be filed soon with the Colorado Supreme Court.
Colorado Secretary of State Scott Gessler is also reportedly preparing new rules for how clerks are to respond to such open-records requests. But, given his repeated confrontations with county clerks and the fact a district court recently rejected his attempted rule-making on other election issues, the clerks aren’t confident about assistance from that quarter.
Reiner and some other county clerks have proposed fixing the problem by having the Legislature pass a law that exempts the voted ballots from the Colorado Open Records Act. Others have suggested there may be ways of preventing people from identifying who cast a particular ballot by creating legal barricades to prevent someone from following the paperwork trail that Reiner demonstrated to the Sentinel.
We think the second approach is the better one. As long-time advocates for open records, we’re not eager to see laws created that add any new exemptions to what records are available to the public.
But we certainly understand Reiner’s consternation. The state Constitution prohibits her and other election officials from disclosing how any individual voted. It’s clear Reiner takes that prohibition seriously, and she is doing her best to educate the public about the consequences of the court ruling and look for reasonable solutions.
A secret ballot is one of the fundamentals of our democratic republic. If people have a means of identifying how individuals vote, then voters may be subject to all sorts of pressure — from family members, employers, unions, political groups and even elected officials — demanding that they vote a certain way or face who-knows-what consequences.
If the Court of Appeals ruling is not overturned or stayed by the state Supreme Court, then the Legislature must act quickly next year to prevent people from using ballots and other public documents to determine how individuals vote.