Aspen’s Marks, citizen group sue over election practices
The Aspen Times
Aspen, CO Colorado
DENVER – Citizen Center, a nonpartisan group of Colorado voters founded by Aspen resident Marilyn Marks, on Monday filed a lawsuit in U.S. District Court in Denver that challenges election practices in six Colorado counties.
The suit, filed against Colorado Secretary of State Scott Gessler and the county clerks in Boulder, Jefferson, Larimer, Mesa, Eagle and Chaffee counties, seeks court action requiring Gessler and the clerks to halt practices that violate voters’ constitutional rights to anonymous, untraceable ballots.
According to the nonprofit Citizen Center, many Colorado counties employ procedures that make it possible to identify the individual who cast a specific ballot. The lawsuit comes months after Gessler failed to enforce compliance in response to voter complaints filed with his office, according to Marks.
Concerns about ballot anonymity grew out of Marks’ initial quest for ballot transparency. She and other advocates began asking to view a sampling of ballots in various counties and, in some cases, were denied by clerks who voiced concern that viewing the ballots, in conjunction with other election data that is available to the public, could result in some ballots being linked to the voters who cast them.
“We truly didn’t believe them,” Marks said. “It turned out they were telling the truth. It took me awhile to react to it in a serious way.”
The lawsuit names clerks Sheila Reiner (Mesa County), Scott Doyle (Larimer County), Pam Anderson (Jefferson County), Hillary Hall (Boulder County), Joyce Reno (Chaffee County) and Teak Simonton (Eagle County), along with Gessler, as defendants. It asks the court to deem procedures that compromise the anonymity of ballots unconstitutional and seeks an injunction to halt such practices.
Denver attorney Robert A. McGuire, representing Citizen Center, said he doesn’t anticipate responses from the counties refuting the group’s assertions, since clerks have already admitted the problem.
In Chaffee County, Marks said she was told it would not be an easy task to produce even one ballot for her inspection that officials could be certain was not traceable.
In Eagle County, which includes voters in the mid-Roaring Fork Valley, Simonton has conceded systems and practices in place to conduct elections allow her to trace voted ballots to individual voters, according to the lawsuit.
“Simonton has denied public records requests seeking to inspect voted ballots and other election records of Eagle County on the basis that allowing an inspection of the records requested would enable the public also to trace voted ballots to individual voters in Eagle County,” the suit reads.
Simonton did not return a phone call seeking comment on Monday.
Last month in Larimer County, the clerk or his staff authored a presentation that showed how to locate ballots cast in a recent election by several identifiable voters, all state legislators from Larimer County, according to the lawsuit.
The suit is a civil rights action, according to McGuire. It involves the violation of rights guaranteed by the U.S. Constitution as well as the Colorado Constitution, he said.
The counties involved in the suit represent nearly 1 million voters, Marks noted in a press conference she held Monday in Denver with McGuire. About a dozen media outlets, including The Aspen Times, listened via conference call.
How many voters’ ballots are actually traceable is unknown, McGuire said, but every voter’s rights are violated by practices that don’t ensure equal protection under the law – in this case an equal right to cast an anonymous ballot.
“It really is a problem that affects everyone, even if the numbers are fairly small,” he said.
Marks stressed that she doesn’t believe county clerks are attempting to trace ballots to the people who cast them, but among clerks, their staffs and the many others who can be involved in running and verifying an election, the information is available to a significant number of people.
Systems that compromise the anonymity of ballots involve the use of identifying numbers and bar-codes on ballots in some counties, and the practice of batching small groups of ballots together without shuffling them, maintaining the connection between the ballot and the voter, according to Citizen Center.
Customized ballots further exacerbate the problem, Marks said Monday. A relatively small group of voters may receive a ballot with a particular issue on it; if one of those voters’ ballots winds up bundled in a batch of 25, figuring out who cast it probably isn’t difficult, given other information that is available, including the day a particular voter’s ballot is cast.
The Citizen Center lawsuit has its roots in Marks’ efforts to examine ballots cast in elections in Aspen and elsewhere.
She is embroiled in a lawsuit against the city of Aspen, where she ran for mayor in 2009 and lost. She subsequently asked to review images of the ballots, created by a new voting system the city employed that year. The request was denied. Marks said she was not interested in contesting the results of the 2009 election, but wanted to verify the results produced by the new voting method, one the city has since scrapped.
Marks prevailed in the suit at the appellate court level; the city has appealed for review of the case by the Colorado Supreme Court.
She is also involved in litigation in Mesa, Chaffee and Jefferson counties regarding requests to view ballots in those jurisdictions.
Meanwhile, according to Marks, the Colorado County Clerks Association may succeed in having a state legislator introduce a bill that exempts ballots cast by voters from review under the Colorado Open Records Act – a move that she said restricts the public’s right to information without solving the problem of ballots that are traceable by the government.
“It’s chilling someone’s freedom of expression to be afraid to vote their conscience because they’re afraid somebody may find out how they voted,” she said.
The clerks named in the Citizen Center lawsuit were chosen because the practices and voting systems in place in those counties are representative of those of many other Colorado counties and because they are home to a large number of Colorado voters, according to the group’s website, http://www.thecitizencenter.org. Individual members of Citizen Center live and vote in the defendant counties and are concerned about the prospect of voter intimidation and the possibility that voters will hesitate to cast a ballot or vote their conscience when they discover their ballots can be traced back to them by election officials or partisan appointees, according to materials posted to the website.
In Pitkin County, Marks’ home county, election officials take steps to ensure ballots aren’t traceable to individual voters, including storing them in random, untraceable order, according to the website. The Citizen Center’s lawsuit offers Pitkin as an example of a county where elections are conducted “without any need for the government to compile and maintain information that violates secrecy in voting by permitting voted ballots to be traced to individual voters.”
Unless the issue is addressed in counties where traceable ballots are a problem, Colorado’s 2012 election results, starting with the June primary, could be vulnerable to challenge, according to Marks.
She urged citizens to take up the issue in their own counties.
“Ask the hard questions,” she said. “Ask to see voted ballots. That’s how this all began.”