Maurice Emmer and Harvie Branscomb: Guest opinion
Special to The Aspen Times
Aspen, CO Colorado
We both write repeatedly about the importance of election transparency. We present facts. We don’t make things up. Stories about revealing ballot “secrets” often sound like scary tales told to children. They are designed to frighten, not inform. Jack Johnson’s scary story recently published in another paper might trigger your instinct to fight, but that’s what fiction and political propaganda are intended to do.
Johnson’s column, and recent announcements by the city of Aspen, misconstrue election and open-records law as well as misrepresent the Marks v. Koch case and the Court of Appeals’ unanimous opinion in favor of ballot transparency. As untrue assertions have become Aspen’s norm, here we try to separate fact from fiction.
A little history, not made up:
Before 1947, Colorado ballots were marked with unique numbers and were not anonymous. Voters might mark their ballots in secrecy, but their votes were traceable through deliberate numbering. A 1947 constitutional amendment outlawed any marks on ballots that make them traceable. This revolutionary change facilitated effective privacy of Coloradans’ voting process and is the foundation of our civil right to expect our votes to remain secret. This voting method – sometimes referred to as the “secret ballot” – ironically does not allow for secrets on ballots.
However, opponents of election transparency talk endlessly about “secret ballots.” Hate to tell you, there’s no such thing. “Secret ballots” have no place, indeed no meaning, in our election law. Voters are entitled to privacy while voting and a system designed to prevent tracing a ballot to a voter. These safeguards ensure NO ONE learns how anyone else voted. They ensure what everyone wants: Nobody knows how I voted.
Many states understand that a properly implemented anonymous ballot prevents anyone from tracing your votes to you. Anonymous ballots are no more traceable to the voter than newspapers abandoned on a bench are traceable to the purchaser by later readers of the paper. Anonymous ballots are not like tax returns and medical records (a badly chosen analogy attempted by Johnson). If you leave your tax return on a bench, anyone who finds it knows it is yours. Ballots are different.
So why the huge official resistance to public viewing of anonymous ballots? Could public officials benefit from abusing a system where ballots are kept “secret”? That kind of secrecy protects any errors and misconduct in the election process. That kind of “secret ballot” would not serve the public interest.
Johnson argues it’s unnecessary to permit the public (including the press) to see ballots because of adequate quality controls on Aspen elections. How dependable are they?
Election audit methods are immature. 2011 saw Aspen’s first complete election audit. Audits are only a part of much-needed verification because current centralized counting methods are more complex and harder to verify than hand-counted ballots were in precincts. The centralization and use of mail-in ballots alone should make citizens demand more and easier independent ways to validate election results.
So-called accuracy tests aren’t sensitive enough. Access to recounts and challenges is limited and expensive. Modern post-election reviews are often impossible to oversee.
Given the spotty functionality of existing checks and remedies, we reject Johnson’s comforting us that existing controls justify endorsement of secrecy of post-election records.
What of Marks v. Koch? Under the Colorado Open Records Act (CORA), Marks sought public disclosure of images of ballots in a city of Aspen election. CORA makes most public records available for public inspection on request, not requiring a reason to be given, only a willingness to pay direct costs. The local District Court dismissed the case at Aspen’s request. The District Court’s brief explanation made sense only to Aspen officials. Marks appealed; the Colorado Court of Appeals unanimously agreed that the District Court and the city were utterly, completely, totally wrong.
The Appeals opinion says ballot images are public records and must be released. The reasoning: 1) The Colorado Constitution requires anonymous ballots. 2) Anonymous ballots are not exempt from being public records; the voter’s identity cannot be known.
3) A ballot not anonymous for any reason is exempt from disclosure, thus protecting the voter’s identity.
Why the fuss about that logic? We don’t get it.
The constitution guarantees citizens’ rights to “secrecy in voting” and anonymous ballots. The Court of Appeals correctly found that ballots should have no identifying marks and therefore may be disclosed with stated protections for the rare ballot that may for some reason be identifiable.
Aspen officials seem emphatic about securing permanent secrecy of ballots but meanwhile disregard the ballots’ constitutional anonymity. They and Johnson seem bent on preventing citizens from independently discovering whether those anonymous ballots were counted properly.
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The COVID-19 pandemic has caused untold amounts of suffering and disruption, and we’ll probably tell those stories for the rest of our lives.