Ballots neither sanctified nor secret
October 9, 2011
Officials in Aspen’s government are sadly still fighting to save face over the exciting 2009 municipal election – pouring good money after bad in attempting to defeat Marilyn Marks, while trying to hide election records that were promisingly made public for an evening, and then hidden from view.
Aspen’s press release says Aspenites have a “right” to expect their cast ballots to remain secret. Aspenites, in fact all Colorado voters, enjoy a constitutional guarantee of “secrecy in voting” and an anonymous ballot – but no “right” to a “secret” ballot, meaning a ballot that is kept secret after the election, nor would we want such a right.
Aspen’s press release says “citizens have a right to know that their ballot will remain forever secret.” If ballots did contain voters’ identities and were kept as secrets, only election officials would be privy to whatever is on them that the constitution considers illegal and the voter considers private.
In fact, early in the previous century, ballots and voters were numbered such that access to ballots made it possible to see how each person voted. During that period, laws prevented public access to the ballots for obvious reasons. Three officials with three different keys were needed to open the glass ballot box to extract the ballots for counting. The ballots were kept secret because they were not anonymously cast.
Our system changed in the middle of the last century, when “voter privacy” became the law and untraceable – that is, anonymously cast – ballots became public records. Each ballot is required to be anonymous according to the state constitution, and we changed to a single key. This is a much safer system – something that Aspen’s officials seem to misunderstand.
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Contrary to the city’s press release, Aspen’s appeal to the Colorado Supreme Court is an effort to defeat transparency of election records statewide, at great cost to the public in two ways – loss of verifiability of elections – and huge costs to send a band of lawyers to Denver.
Yes, the 2009 Aspen municipal election was perhaps the most transparent in history – for one night only. Days after that election, the shutters were drawn, and Aspen backed away from its noble experiment with transparency. The city launched a hugely expensive battle with Marilyn Marks when city officials refused to offer to the public copies of a CD containing ballot scans made for that purpose.
Aspen’s rhetoric echoes the strangely religious overtones of some county clerks who have been talking about “sanctity” of ballots and repeating the catchy propagandistic phrase “secret ballot.” There is nothing sacred or secret about an anonymous ballot. Ballots are not intended to be secret. The private information contained on each is protected by the crucial requirement of anonymity – as the Court of Appeals concluded when it decided not to change the liberating effect of existing open records law that citizens have used to check their elections.