Despite federal court setback, 
fight for secret ballot continues

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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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