Despite federal court setback, 
fight for secret ballot continues

According to the Colorado Constitution, “no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it” (Article VII, Section 8).

Notably, the language of the Colorado Constitution makes no exception to this rule for county clerks or others involved with administering elections.

Nevertheless, some Colorado county clerks have declared themselves and their staffs exempt from the law protecting the secret ballot.

Because of our strong tradition of ballot secrecy, it should be a matter of concern to all Coloradans when a federal judge validates the clerks and rules that we have no right to expect our ballots to be private.

U. S. District Court Judge Christine Arguello dismissed a lawsuit seeking to prevent Secretary of State Scott Gessler and county clerks in Boulder, Chaffee, Eagle and other counties from using ballots with barcodes and identifying numbers that could be be linked to a specific voter.

Technically, the case was dismissed by Judge Arguello for “lack of standing” by Aspenite Marilyn Marks and her organization. As Humphrey School of Public Affairs blogger Doug Chapin explained, “The upshot from last week’s ruling appears to be that the district court judge thought they were in the wrong court and using the wrong theory.”

That ruling could have ended Judge Arguello’s involvement in the case, but she proceeded to address the merits of the case as well.

According to The Denver Post, “Arguello said activists had not shown the plaintiffs had suffered or would suffer any specific injury that could be remedied by a federal court. She said that even if a ballot could be traced back to a specific voter, it doesn’t show that a person’s voting rights were violated, saying there was no ‘fundamental right’ to a secret vote in the U.S. Constitution.”

Marks, founder of the organization that filed the lawsuit, was taken aback by the decision.

“We came in confident the court would agree with us,” Marks said, “and to hear the court say that it is all right for the government and all of the election workers in Boulder County to have access to how we vote is absolutely shocking.”

Despite losing on the big issue of ballot secrecy, however, Marks pointed out that progress toward the goal of reducing the ability of election officials to identify individual voters has been made as a result of pressure from the lawsuit.

In June, Gessler issued guidelines for Mesa County and other counties using “batching” of ballots in a manner that could enable linking individual ballots to voters. Gessler’s guidelines aim to reduce this practice. All these counties have complied, though none has entirely abandoned the practice.

After the motion to restrain counties from printing barcodes on ballots was filed in August, Gessler issued an emergency order to stop counties from printing identifying barcodes on ballots.

“To our knowledge all 45 or so barcoding counties are now complying” with the emergency order, Marks said.

“So, although we ‘lost’ the case at the trial court level,” she concluded, “the changes we forced were dramatic ones for the November election, presuming that the clerks follow Gessler’s emergency rule.”

Fortunately for Coloradans who believe they do have a right to a secret ballot, Marks pledges not to give up the fight.

Regarding the decision by the federal district court, she said, “This is actually going to allow us to expedite the case. Expensive and time consuming discovery has been cut off and we can now focus on arguing the law and moving things through the courts faster. This will allow much broader impact far more quickly.”

Voters of all political affiliations who believe the right to vote without fear of censure or retaliation is essential to democracy should support Marks by demanding that Colorado elections meet the standards for secret ballots.

Thanks to the federal court ruling, the nation will be watching how Colorado resolves the standoff between the county clerks and advocates for a secret ballot. By resolving the issue in favor of the secret ballot, Colorado can offer a model for the nation.

Bill Grant lives in Grand Junction. He can be reached at .(JavaScript must be enabled to view this email address).


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Gary Harmon’s previous report (“Judge says ballots with bar codes OK for elections; Voter activist stunned by ruling” September 23, 2012) and Bill Grant’s timely follow-up column today (“Despite federal court setback, fight for secret ballot continues”) bode well for the future of the “secret ballot” in Colorado.

Because Marilyn Marks raised a “matter of first impression” in the federal courts—whether Americans in general and Coloradans in particular have a fundamental constitutional right to vote by “secret ballot”—she faced daunting legal hurdles.  Even though most citizens presume they have such a right, our own election officials argued to the contrary – at taxpayers’ expense.

Judge Arguello conservatively interpreted existing law by ruling that voters have no legal “standing” to challenge non-secret elections in federal court absent proof of “concrete and particularized, actual or imminent” injury caused by the lack of ballot secrecy.

However, the whole purpose of the “secret ballot” is prophylactic – to eliminate any possibility of linking voters’ identities to their ballot choices.  Historically, the mere fact that election officials are sworn to secrecy has not proven sufficient to prevent abuses.

Moreover, after ruling that she lacked jurisdiction to reach the merits of Marks’ 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 her rulings were “mere dicta”, or state law questions should have been “certified” to the Colorado Supreme Court for an advisory opinion.  Therefore, while Marks is still awaiting a written opinion, she plans to appeal the ruling to the 10th Circuit.

Meanwhile, Marks has provided an invaluable public service by exposing the apparent fact that Colorado’s constitutional mandate for “anonymous” and “unidentifiable” ballots does not yet mean that Coloradans have a constitutional right to vote by “secret ballot”.

                Bill Hugenberg

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