Don’t dismantle Colorado’s election oversight in 2012

“We hereby inform you that the file folder holding your 2010 ballot will be shown to The Daily Sentinel. We track all ballots, but we won’t look or show the Sentinel your particular ballot. Trust us, don’t be alarmed, Big Brother won’t tell.”

If you got such an intimidating email from Sheila Reiner, Mesa County Clerk, you’re in good company. In November she sent an email with essentially that message to state legislators who live in Mesa County.

The Larimer County clerk likewise brazenly informed legislators that he had located the batches containing their ballots and would show his process, but not their specific ballots, to the Denver Post. (See these clerks’ emails and presentations on

Such an unsettling message must have shocked the powerful officials. When lawmakers vote in the Capitol, their votes are public record. But in the voting booth, they, like all citizens, have a right to a secret, anonymous, untraceable ballot. Yet the clerks shamelessly bragged to the legislators that in many Colorado counties, ballots are identifiable and at risk of being disclosed

Now, anticipating the 2012 presidential election, Reiner is lobbying those same lawmakers for passage of legislation to undermine election transparency. She pitched her proposal in Friday’s Sentinel. After receiving less-than-subtle warnings that she and her staff (and party bosses) can locate legislators’ not-so-secret ballot, are any lawmakers nervous about voting against her proposed legislation?

Many voters receiving such a message would think twice before marking their 2012 ballot with choices unacceptable to their employer, landlord, spouse or customers.

In one Colorado county, some voters fretfully sat out a recent election after being told by their boss that, as an election judge, he would access information on how they voted, and instructed them to vote for a certain candidate.

I know one high-profile, senior public official who, after learning of the anonymity violations in his county, did not vote in the last election, because he felt that he needed to protect his privacy.

The Citizen Center lawsuit filed in federal court is based on that violation of citizens’ constitutional rights to a secret ballot. Your ballot, and legislators’ ballots, should not be findable or traceable to you by anyone, most especially government officials! Otherwise, your identifiable ballot may constitute a constant, illicit threat of retribution for your choices. This lawsuit seeks to require the clerks to immediately stop their flawed practices that can reveal how a voter voted his or her ballot, so that 2012 elections are not at risk of being challenged as unconstitutional.

The proposed Heath/White/Court/Murray bill only helps clerks conceal illegal tracking mechanisms, not fix them. Sen. Rollie Heath missed the point: No clerk is permitted to collect such information. That information should never exist. Concealing illicitly gathered information about voters with tacit approval by lawmakers abuses the public interest. Concealing damning evidence, as this bill proposes, does not cure a violation of our rights to a secret ballot.

In specific rare situations, some ballots are not anonymous, and the voter explicitly waives his or her right to a secret ballot. Such ballots should remain confidential. Current case law makes it clear that clerks should withhold such ballots from public view. All other ballots should be freely available, and the public should be able to verify that ballots are not traceable.

Heath’s proposed legislation not only supports some clerks’ concealment of tracing mechanisms but charges newspaper or citizen oversight teams for the cost of redacting or hiding the evidence of the violations.

The heavy-handed legislation prevents public and press from meaningful election oversight activities until after the election has been finalized and no appreciable corrections can be made, even if serious errors are found. Only wealthy politicians with war chests can then afford legal battles to correct errors. Election-year politics mustn’t be creating laws that wink at government’s improper collection of private data and then draw dark curtains around election processes, leaving only the wealthy with meaningful post-election transparency in time for an expensive court challenge.

The state Constitution, the open records laws and the election rules related to transparency are sound and must not be diluted by election-year politics. Write your legislators to demand that they not dilute election transparency or help election officials conceal their violation of your voting rights.

Marilyn Marks is an Aspen resident who has challenged ballot-handling processes in several Colorado counties, including Mesa.


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