Mitzi Rapkin: Guest opinion
November 15, 2011
By now, most citizens as well as out-of-state interest groups, and even tourists, know that Aspen resident and former mayoral candidate Marilyn Marks sued the city of Aspen to see images of all the ballots cast in the 2009 municipal election. That’s because the city denied her Colorado Open Records Act (CORA) request to see them. After the district court sided with the city and the appellate court sided with Marks, the city is taking this case to the Colorado Supreme Court.
Some in the community have questioned the city’s stance on continuing to argue this case. If you are interested in exact details of the city’s reasons you can read the city’s petition at bit.ly/tf9JSQ.
Two excerpts from the city’s brief explaining why the Supreme Court should review the decision of the court of appeals follow:
– “In elections, there is a functional conflict between two important values: the ability to verify election results and the right of voters to a secret ballot. All election systems used in the United States since the introduction of the secret ballot in the late 19th century have sought to strike a compromise between these two values. In arriving at a compromise, election systems have uniformly given greater weight to secrecy over verifiability. Nonetheless, verifiability was not entirely sacrificed as confidence in elections results is critical to the democratic process. Verifiability was preserved by introducing other mechanisms in the conduct of elections, including post-election recounts and audits. The ultimate verification mechanism and safeguard is the court contest.”
– “The principle issues presented for review are constitutional issues and this Court has never had an opportunity to interpret the phrase ‘secrecy in voting’ that is found in the Colorado Constitution. Indeed, this Court has only had limited occasions to cite this particular section of the Constitution. Those limited cases, discussed below, are not in accord with the opinion of the Court of Appeals in the instant case.”
Marks and her supporters are trying to renegotiate the constitutional compromise between verifiability and secrecy that has prevailed in all 50 states for more than 100 years. If any citizen wants to alter that compromise, they should debate and discuss the issue in the state Legislature, not in the courts. The city is duty-bound to defend its election laws – laws that guarantee the right to secrecy in voting and which provide sufficient safeguards to ensure verifiability through recounts, audits and even court contests. Marks, like any other citizen, was afforded the opportunity to contest the 2009 election and she chose not to.
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There has been some discussion about the potential harm, or lack thereof, in publicly releasing voted ballots after an election. In addition to being against the law, the public release of ballots will make it possible for ballots to be used to invade voters’ rights to privacy. Ballots are anonymous when provided to voters. If voters do not mark their ballots in a distinguishing manner, they will continue to be anonymous. The assumption that voters would not intentionally mark their ballots ignores the history of election fraud, intimidation, coercion, and vote-buying that occurred before the implementation of the secret ballot.
Because there frequently are numerous ballot styles used in elections and results must be reported by precincts to assist in post-election audits, anonymous ballots may still be used to identify individual voters. In recent local elections, there was one candidate for council who received 12 votes, a mayoral candidate who received 30 votes, and an election that required up to two dozen different ballot types. It would not be very difficult to identify individual voters using their anonymous ballots in these types of situations. What would prevent a spouse to intentionally mark a spouse’s mail-in ballot so it could later be used to locate the ballot? Once people realize that cast ballots will be released to the public, there is no telling how the ballots will be used to identify individual voters. The only way to ensure secrecy in voting is to make sure all cast ballots remain secret forever.
Election transparency and verifiability are important to a democratic system. The right to secrecy in voting is also important and should be protected just as vigorously. Our current election laws provide the necessary verifiability by allowing post election recounts (automatic or requested), audits, and judicial review via court contests. There has been absolutely no evidence of fraud or mistake in the results of either the 2009 or 2011 municipal elections. Just the opposite is true. Post-election audits following each of those election confirmed that not one vote was improperly counted.
There is a larger question looming, which is: Should the courts be making laws or interpreting them? The question of whether election ballots are open to inspection barring a contest, audit, or recount, is the domain of the Legislature, not the courts. It may come to pass that the Legislature does create legislation that ballots are subject to public inspection at any time or for any reason, but that day has yet to come. If and when it does, the city of Aspen will continue to comply with the law.