Voters’ secret ballots may not be so secret after ruling

Scott Gessler

Sheila Reiner

The state’s county clerks plan to ask the Colorado Legislature when it reconvenes in January to make ballots exempt from the Colorado Open Records Act.

The clerks say a Colorado Court of Appeals ruling in August that ballots are public records has turned election law on its head and could allow someone to find out how people voted, no matter how careful clerks are in guarding voter secrecy.

But fixing the problem could be more problematic than most people think, Mesa County Clerk Sheila Reiner said.

Reiner and Jefferson County Clerk Pam Anderson, who are facing identical lawsuits demanding to make their ballots public, say doing so would identify individual voters and how they voted. As a result, they think ballots should be made exempt from open-records laws.

“Secretary of State (Scott) Gessler is working on rules to accommodate this process, but we don’t believe the rules should be created because we don’t think the ballots should be made public record,” Reiner said. “What we’re asking the legislators for is a CORA exemption. This is a problem.”

Some people disagree, saying a balance can be struck that maintains election transparency without violating secrecy laws.

Samantha Johnston, executive director of the Colorado Press Association, said there is an argument to be made for keeping ballots open records, and the press association is working with a coalition formed by Secretary of State Scott Gessler to find that balance.

“We wholeheartedly believe that voted ballots are a public record; however, we understand some of the concerns raised by the clerks,” she said. “We don’t have any answers yet, though.”

Current law allows anyone to get a list of Coloradans who cast their ballot, and by what method they used, such as mail-in or electronic voting machine.

Reiner said operatives for both major political parties routinely get such lists because they use them to track trends and to know which voters, by name, to target in the future.

The law requires the clerks to maintain a detailed record of each election, which is needed in case results are challenged or a recount is necessary.

In 2007, the Legislature helped create the problem when it changed the law to require clerks to report by precinct.

The combined effect of those laws, coupled with the court ruling that allows people to get copies of the actual ballots, now makes it possible to see how individuals voted, Anderson said.

“When that precinct-reporting law was proposed, the clerk did testify, saying ... it would also erode the anonymity of certain voters,” said Anderson, who also is vice president of the Colorado County Clerk’s Association. “But how do we balance these values of transparency and accessibility and privacy? That’s what the legislation will need to address.”

In ruling on a case from the 2009 mayoral race in Aspen, the court said digital copies of ballots are subject to the state’s open-records law and must be made public as long as they don’t identify who cast them. Aspen officials announced Friday that they plan to appeal that.

Regardless of the legal outcome of that case, clerks and other groups plan to continue meeting with officials in Gessler’s office to address the matter, either though rule-making or a bill in the Legislature.

Gessler spokesman Richard Coolidge said the Secretary of State’s Office is looking at several possible solutions, including what other states have done.

Several have found a balance between maintaining voter secrecy while allowing public access to actual ballots, he said.

Grand Junction Republican legislators Sen. Steve King and Rep. Ray Scott agreed that part of the problem stems from political parties, who find voting patterns invaluable information in running elections. Knowing who voted and when is helpful, but how people voted can give a campaign a tremendous advantage in targeting an election.

Still, both lawmakers agreed ballot secrecy shouldn’t be compromised to accomplish that.

“It becomes scary when you start talking about how we now have become so focused on (voter) patterns ... it gets right down to individual groups and eventually to individuals,” King added. “That’s politics.”


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