Secret ballot decision could impact Mesa County elections
Mesa County Clerk Shelia Reiner should inform county voters of the implications of Secretary of State Scott Gessler’s recent election rule change forbidding printing ballots with bar codes that can be linked to individual voters.
Although the ruling applies to 44 counties that use preprinted bar codes to identify ballots — a practice not used in Mesa County — the principle of ballot secrecy should apply to all voting procedures.
Reiner has demonstrated that the batching of ballots conducted by her office makes it possible to link individual voters to their ballots. Though her method is different, the result is the same as with bar-coded ballots: It is possible to link voters to ballots in county elections.
Gessler’s rule change results from the two-year battle by Marilyn Marks and Citizen Center to assure transparency in Colorado elections, including the right of citizens to review voted ballots to confirm election results.
County clerks, including Reiner, have used their ability to identify individual voters by their ballots as a reason to deny citizens access to voted ballots immediately after an election.
According to Citizen Center, Gessler and some clerks took the position that Colorado voters have no constitutional right to a secret ballot. Election officials, they said, are not prohibited from knowing how individuals vote in elections.
Citizen Center sued Gessler and selected county clerks “to vindicate Colorado voters’ constitutional rights to a secret ballot.” It alleged that, “In recent years many Colorado election officials have used computerized voting systems and record-keeping to compromise the voters’ right to maintain private ballot choices and keep them secret from the prying eyes of government.”
Last June, the Colorado Supreme Court refused to reconsider an appellant court decision affirming the right to a secret ballot and the right of citizens to review election results.
“This is a welcome decision that reconfirms the vitality of the Colorado Open Records Act as a powerful tool that permits ordinary Coloradans to hold their state and local governments accountable,” said Marks’ attorney, Robert A. McGuire of Denver.
Marks added, “Colorado election officials have fought transparency, despite numerous pro-transparency court rulings and Secretary of State Gessler’s guidance that anonymous, untraceable ballots are open public records. Voters’ ballots must be untraceable, voted in private and counted in public, as the courts continue to affirm.”
Though Gessler had earlier supported the clerks’ position, when he was presented with evidence that votes could be identified by bar codes, he moved quickly to end the practice before the November election.
He has now adopted an emergency rule to prevent counties from printing ballots with unique numbers and barcodes, his office said.
Citizen Center filed in federal court for a temporary restraining order to prevent the use of traceable ballots in November. That case was resolved, but the rule Gessler put in place is only temporary. After the election, a permanent rule to protect voter identity, and ensure citizen accesses to voted ballots will need to be enacted.
The implications for the state from this ruling are enormous. As McGuire explained, “The Colorado Supreme Court has ruled in no uncertain terms that an election in which all ballots are traceable back to their voters is a void election. No wiggle room, no exceptions. That means every race on the ballot this November, from dog catcher all the way up to president, will be in jeopardy of being thrown out if this illegal practice of printing unique, traceable numbers and barcodes on Colorado ballots isn’t stopped.”
A Grand Junction man, Bill Hugenberg, commented on a story at GJSentinel.com, “Fortunately, Mesa County Clerk and Recorder Sheila Reiner is not immediately affected by Gessler’s emergency rule, because she does not allow traceable bar codes on ballots. However, because traceable barcodes are now prohibited by rule, then Reiner’s local discretionary ‘batching’ procedures ... are similarly suspect.”
This ambiguity could leave Mesa County voters uncertain of the legitimacy of the votes they will cast in November. Could we precipitate a head-on constitutional collision that could have national consequences? Mesa County voters deserve an answer to that question.