EAGLE, Colo. - A federal lawsuit challenging election practices in six Colorado counties has "grossly exaggerated" the potential for tracing ballots back to the voters who cast them, at least in Eagle County, according to Eagle County Clerk Teak Simonton.
Eagle County is named in the lawsuit, filed Monday in U.S. District Court in Denver by Citizen Center, a nonprofit organization founded by Aspen resident and election activist Marilyn Marks.
"I think that maybe 1 percent of the ballots could be identified if we did a great amount of research," Simonton said Tuesday. She could not be reached for comment Monday after the lawsuit was filed.
Citizen Center filed a civil suit against Colorado Secretary of State Scott Gessler and the county clerks in Boulder, Jefferson, Larimer, Mesa, Eagle and Chaffee counties, seeking court action requiring Gessler and the clerks to halt practices that violate voters' constitutional rights to anonymous, untraceable ballots.
"She grossly exaggerated the nature of the issues," Simonton said Tuesday in reference to Marks.
According to Simonton, neither the serial numbers nor the bar codes that appear on Eagle County ballots allow a cast ballot to be traced back to a voter. There are, however, instances in the county when a particular style of ballot, cast in a particular precinct on a particular date, could be traced back to a voter. Ballot style refers to the questions on a ballot; in small, special districts, for example, relatively few individuals might be voting on a special district question.
In Eagle County, which has about 18,900 active voters, including residents in the mid-Roaring Fork Valley, 11 voters in the northeast corner are part of the West Grand School District, Simonton noted. If a single one of those ballots winds up in a large batch of ballots that are tallied on a particular day, it could be traceable, she said.
"I don't think county clerks realized how it could be done until we started getting these requests for ballot images," Simonton said.
In Pitkin County, which the lawsuit offers as an example of a jurisdiction that takes steps to avoid traceable ballots, Clerk and Recorder Janice Vos Caudill has expressed similar concerns about the ability to track a small number of ballots. In responding to Marks' requests late last year to view election ballots cast in 2010 and 2011, Vos Caudill made sure such ballots weren't in the sample. Marks lives in Pitkin County.
Requests to examine ballots, which Marks said were denied in some counties by clerks who raised the specter of identifiable ballots, ultimately led to the Citizen Center lawsuit. Individual members of Citizen Center live and vote in the defendant counties.
No Colorado Open Records Act request to view ballots was made by Marks or the group in Eagle County, Simonton said.
"We weren't part of the open-records request for ballots, so I'm not sure why we were included in it (the lawsuit)," she said.
Marks said verbal requests to view ballots were granted in some counties. A verbal request was denied in Eagle County, she said. In addition, Marks said the prospect of identifiable ballots was raised by Simonton as an issue in restricting Marks' access to ballots when she was a poll watcher there in 2010.
While defendants in the lawsuit prepare their responses, Simonton said one step her office can take to minimize identifiable ballots is combining batches of ballots that are scanned into larger groupings with the hope of preventing singular ballots that could be traceable from winding up in a batch.