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Traceable ballots could sabotage Colorado elections in 2012

Posted: Thursday, Dec 22nd, 2011

SOS official Ben Schler was watching during the Nov. 1, 2011 election when County Clerk Melinda Myers tried to separate ballots into small batches that could become traceable. Here he demonstrates that the batches were sorted into larger groups. Photo by Teresa Benns

SAN LUIS VALLEY — As Colorado shapes up to be a swing state during the 2012 General Election, suggested changes to Secretary of State (SOS) rules governing election integrity and transparency could further endanger Coloradoans’ rights to an anonymous ballot and honest elections.

Those hoping for a fair election outcome in a crucial race for the White House will instead probably face relaxed security precautions for already compromised electronic voting devices. They also could be faced with a Colorado Open Records Act (CORA) blackout that would deny access to key election documents for nearly 90 days during the election cycle.

The CORA block would prevent poll watchers, media, and ordinary citizens from examining ballots, and would delay and restrict examination of logs, poll books, and other essential election information in the event of a disputed election. This even after Colorado Sec. of State Scott Gessler won a lawsuit in August 2011 against Saguache County Clerk Melinda Myers, with District Judge Martin Gonzales ruling that ballots are public records and Gessler as well as ordinary citizens have a right to request and inspect them.

Judge Gonzales’ decision was later upheld by an appeals court decision granting Aspen election-integrity advocate Marilyn Marks the right to inspect and copy photocopies of ballots cast during her bid as a candidate for mayor of Aspen, Colorado, in 2009.

Despite these clear rulings by the courts, for the past several months the Colorado County Clerks and Recorder’s Association (CCCRA) has been lobbying to obstruct CORA requests for ballots, most of them made by Marks, and has openly questioned the Colorado Appeals Court decision. Further, the City of Aspen has appealed the appellate ruling to the Colorado Supreme Court.

According to the general consensus of the clerks, no one should actually be able to verify an election once they have "counted" the ballots, or rather their contractors and voting machines have produced numbers telling the citizenry who "won."

Even more worrisome to election integrity activists, however, is the claim by several CCCRA clerks who recently admitted that they know how to trace actual ballots back to the citizens who voted them and that this can be easily done given the right circumstances. It is thought by some involved in preserving election integrity that rules proposed by Sec. Gessler’s staff Dec. 7 in Denver represent a reversal of Gessler’s previous stance that ballots are open records and an adoption of CCCRA’s “sacred ballot” position. In short, citizens would not be able to see the ballots to verify the election results and county clerks and their staff can often tell how citizens voted.

“When elections are conducted in a way that complies with the Constitution, it naturally follows that transparency and voter privacy will not be in conflict,” Marks said. “It is very important that the press and the public be allowed to inspect ballots and verify that they are indeed untraceable and anonymous.”

Marks added that Saguache County Clerk Melinda Myers tried to batch ballots in the November election in a way that would make them traceable. Citizens watching the count objected, she pointed out, and the SOS officials supervising the election made Myers comply with the rules governing the batching. But SOS officials are rarely present to see the rules are followed.

In October Al Kolwicz, with the Colorado Voter Group, addressed CCCRA’s claims that the ballots could be traced to voters with State legislators. He told them in an e-mail that it is essential for election integrity to correct any “deficiency in the voting system certification process [that] has allowed government officials to know how individual voters have voted.”

Kolwicz also advised legislators that they need to investigate whether the clerks’ behavior has violated the federal Help America Vote Act (HAVA) laws and determine, “what has been done with [any] illegal knowledge” they have obtained.

Marks noted last week that “Gessler’s office ‘sees no issue’ here,” following a Monday meeting with SOS officials “The question is whether Gessler will step up to solve the problem, or whether the guys in black robes will have to address this.”

Another election integrity advocate, Mary Eberle, reported recently that problems continue following her visit to Gilpin County. Eberle spoke with Gilpin County Clerk Colleen Stewart about the Hart system (used in 43 counties), which prints serial numbers on the ballots. Depending on the county, these marked ballots may be traced back to the voter, in some counties more directly than others.

Eberle confirmed that this is indeed a problem in talking with Stewart.

“When I spoke with the Gilpin County Clerk and Recorder Dec. 15, she informed me that I would not be allowed to photograph the Hart paper ballots during a review/informal recount under CORA because they have barcodes and numbers that could be traced to the voter through information held by the printer of the ballot,” Eberle said. She plans to gather more information during a review/informal recount of the ballots.

Marks also reported that this traceability “was confirmed to me in documents and eye-witness accounts of clear traceability of significant numbers of ballots in Mesa County. In fact, it appears to be the majority of ballots that can be traced back to the voter. Clerk Reiner is publicly acknowledging the ability of the system to do just that.” Marks said she spoke to a group of well-informed Democrats who fear voter intimidation caused by such a system will directly impact their turnout and results.

“Apparently this and other systems which can connect the ballot and the voter are being used in dozens of counties across the state in direct violation of the constitution,” Marks observed.

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