Ballot transparency a statewide debate
November 28, 2011
ASPEN – A candidate’s request to inspect ballots cast in Aspen’s 2009 municipal election has set in motion similar efforts around Colorado. The end result might be new rules that govern the review of ballots or that withhold them from public inspection altogether.
Meanwhile, Aspen resident and 2009 mayoral candidate Marilyn Marks is expected to review on Tuesday 100 ballots cast in Pitkin County’s Nov. 1 election. Rather than simply eye the ballots, though, Marks has suggested that county Clerk and Recorder Janice Vos Caudill and a group of election officials look over 100 to 200 ballots with Marks and discuss whether any of them are “identifiable.”
The potential to link a voter to a particular ballot via various election information that is available to the public through the Colorado Open Records Act (CORA) has emerged as a concern among county clerks across the state as they respond to ballot requests from Marks and others.
Vos Caudill, however, indicated last week that she would select unidentifiable ballots for Marks’ inspection and leave it at that. Copies of 25 of the ballots, of Marks’ choosing, will be provided to her in digital form on a disc, Vos Caudill said.
Vos Caudill, along with other county clerks around the state, fear that in some instances, a voter could be linked to a particular ballot if ballots are made public along with other information. Already available through a CORA request, she noted, are the names of individuals who voted in a particular election, the date they voted, the method by which they cast the ballot (mail-in, early voting or at the polls) and the style of ballot they cast. Ballot style refers to the questions on a particular ballot; an Aspen voter likely would see different questions on a countywide ballot than a Basalt voter would, for example, while other measures could appear on both ballots.
Marks initially asked to see 605 ballots from the Nov. 1 Pitkin County election – the ballots that were tallied on one day, on one particular machine – which were randomly chosen for a post-election, state-mandated audit. Instead, she will see 100 of the audited ballots.
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The county conducted a mail-only election this fall, though some people dropped off their mail-in ballots in person. The group of 605 ballots includes some from all 10 county precincts, according to Vos Caudill. The group of audited ballots happened to include 49 from Precinct 10 – the Redstone area. Four different styles were among the 49, she said. Two of the styles were each cast by five voters. If all five ballots of one style reflected the same vote on any issue, it would be possible to identify how five people actually voted on a particular measure, Vos Caudill explained.
Marks doesn’t disagree, though she believes that the vast majority of ballots probably aren’t identifiable in that way. “I think there might be a tiny, tiny handful,” she said.
“That’s where we do have a legitimate problem,” Marks conceded. “We need to find a way to design a ballot so we don’t have so many customized ballots.”
In Mesa County, one of several jurisdictions Marks is suing over release of ballots, Clerk and Recorder Sheila Reiner demonstrated to the editorial board of The Daily Sentinel in Grand Junction how an anonymous ballot can be connected to a particular voter.
Boulder-based Colorado Voter Group subsequently filed a complaint with the Colorado Secretary of State’s Office that charges Mesa County with failing to maintain an elections system that protects the anonymity of ballots.
Larimer County Clerk and Recorder Scott Doyle, president of the Colorado County Clerks Association, has also said making ballots a matter of public record could allow people to find out how citizens voted, according to a report in the Loveland Reporter-Herald.
The clerk’s association may push legislation to exempt cast ballots from CORA, according to Vos Caudill. The association’s executive and legislative committees are scheduled to meet next month, she said, and the organization may work to have a bill addressing the issue introduced at the Statehouse when the legislative session begins in January.
“Exactly what it will look like, I don’t know,” Vos Caudill said. She said the responsibility to balance the need for election transparency and voter privacy belongs in the Legislature. It’s the clerks’ responsibility to present the facts and their concerns, she said.
But Marks believes that reports emerging from clerk’s offices around the state – that some ballots are identifiable – could have a chilling effect on voting. She said she’s aware of individuals who refused to vote this year because of such claims.
Nonetheless, Marks doesn’t want ballots exempt from CORA. Rather, she is calling for other safeguards to ensure election data can’t be used to link a particular voter to a particular ballot.
The Colorado Secretary of State’s office is taking that tack as well, and has drafted a set of proposed rules to guide the inspection of ballots. At present, clerks aren’t responding to such requests with any uniformity, according to Marks.
Meanwhile, Marks’ lawsuit against the city of Aspen over its refusal to make its 2009 ballots available for public scrutiny remains unresolved. The city’s action was upheld by 9th District Court Judge James Boyd last year, but in September, the state Court of Appeals overruled his decision. The city has appealed the appellate court’s ruling to the Colorado Supreme Court, but that doesn’t mean the high court will consider the case.
Marks, who lost to Mick Ireland in the mayor’s race that year, has said she has no interest in challenging the results of the 2009 election. Her request to see the ballots is about election transparency, she said.
“If the council cannot show us the ballots because the ballots are identifiable, they are acknowledging that they conducted an unconstitutional election,” she said last month, when the city announced it would appeal the appellate court’s decision.
“The citizens need to have the right to verify an election,” she said last week.
The city, in deciding to file the appeal, maintained that it’s a citizen’s constitutional right to vote their conscience, knowing that their ballot will remain “forever secret.”
The question of whether ballots should be open to public review at any time, for any reason, belongs with the Legislature, the city said in a recent guest opinion in The Aspen Times written by communications director Mitzi Rapkin.