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Voters' rights group sues Gessler, Colorado clerks in U.S. District Court

Posted: Friday, Feb 17th, 2012

Photo by Teresa Benns, SOS official Ben Schler shows that he foiled former Saguache County Clerk Melinda Myers' initial attempt to group ballots in small, identifiable batches Nov. 1 by rearranging them into sets of 50 and 100.

DENVER — The Citizen Center, a non-partisan, non-profit Colorado voter’s group filed a lawsuit in U.S. District Court Monday seeking an injunction and declaratory judgment against Secretary of State Scott Gessler and six Colorado clerk and recorders.

The Citizen Center uses public advocacy and high-impact legal tools to ensure greater transparency and accountability in government and public oversight of government and elections. The group is asking that Gessler and the clerks of Mesa, Boulder, Chafee, Jefferson, Eagle and Larimer counties immediately halt practices that violate voters' constitutional rights to cast anonymous, untraceable ballots.

According to a Citizen Center press release Monday, the legal action seeks to correct election practices in order to restore voters' federal constitutional rights — the fundamental right to vote, freedom of expression, freedom of association, right to due process, and right to equal protection, also the state constitutional right to vote a secret (anonymous) ballot.

The group contends that if these guarantees are not strictly enforced, state constitutional rights cannot be freely exercised.

“The right to a secret ballot is a revered principle of American democracy. No one, most particularly government officials, should have access to information that can connect ballots with voters,” Marilyn Marks, founder of Citizen Center said. She cited the urgent need for remedies in advance of Colorado's 2012 elections.

Marks and her attorney Robert McGuire of Denver held a press conference Monday announcing the filing. Citizen Center member Mary Eberle said Marks and McGuire did a “great job” at the press conference explaining their reasons for their suit.

Both Eberle and Marks acted as watchers at the citizens’ count of Saguache County’s 2010 ballots last August. The Secretary of State’s Office (SOS) supervised the event.

Citizen Center has found that many Colorado counties employ procedures that collect information making it possible to identify the individual who voted a specific ballot. The Citizen Center's legal action comes months after the Secretary of State failed to enforce compliance in response to voter complaints filed with his office.

History of ballot

identification issues

Al Kolwicz, a Colorado Voter Group trustee and Citizen Center member advocating for transparent and verifiable elections filed a complaint with Secretary of State Gessler last October. The complaint was based partly on an e-mail distributed by Colorado County Clerk and Recorders Association (CCCRA) president and Larimer County Clerk Scott Doyle. Doyle’s Oct. 11, 2011 e-mail stated that: “The model we have developed… illustrates that voter privacy can easily be compromised…In our testing of this model, we were able to determine the location of each of your ballots, as well as my own.”

Kolwicz contends that clerks in some counties followed Doyle’s advice and grouped ballots in small, identifiable batches that would allow them to later match ballots to mail-in envelopes and names. Kolwicz points out that this practice is a violation of the Colorado State Constitution and accuses the SOS of failure to demand that Colorado clerks achieve substantial compliance.

“There has been no public efforts to document defects and seek remedies in order to comply with the requirement for anonymous votes/ballots,” Kolwicz told Gessler in the complaint. “Because Colorado Department of State is one of the accused, I and my colleagues wish to participate in the investigation of the complaint, and setting of the procedures for the public hearing.”

Gessler replied to Kolwicz’s complaint last November as follows: “Our office is aware of the issues raised in your complaint and we have already begun taking steps to address the problem. Our office is considering proposing a new Election Rule or statutory change that would restrict election officials from providing reports to the public that could be used to track a ballot to a specific voter.”

“If an individual had access to the voted ballots and the tracking reports, then the person could track a ballot to a specific elector. Our office was made aware of the issues identified in your complaint during the past election cycle.” Gessler’s “steps,” proposed late last fall, amount to restricting availability of ballots by imposing what would amount to a three-month Colorado Open Records Act (CORA) blackout during election cycles.

State legislators are now considering requests of CCCRA members to change the rules and limit CORA access. Former Saguache County Clerk Melinda Myers tried to impose such a blackout last October, before the rules were even officially proposed.

In addition’s to Doyle’s statement in his e-mail, other Colorado clerks named by Citizen Center in the suit have admitted that in their counties, marks on ballots can identify voters.

Boulder County Clerk and Recorder Hilary Hall said in a Dec. 21, 2011 e-mail response to a CORA request for voted ballots: “If the Clerk were to refrain from redacting [the serial number and barcode from] the images, the voter's identity could be discerned from the content of the ballot. This is so because a person could take the information that was redacted from the images and combine them with other publicly available documents and would then be able to tie a ballot to a voter."

In her Aug. 19, 2011 petition to State District Court, Mesa County Clerk Sheila Reiner wrote: “The EL155 is the iVotronic ballot log. This file contains images of ballots, listed by precinct, and shows how someone voted. This log is also printed for the extensive auditing process with the major political parties.”

Jefferson County Clerk and Recorder Pam Anderson, in her Nov. 5, 2011 guest column for The Denver Post told readers: “Once ballots are made public, it is disturbingly uncomplicated to identify votes using other publicly available documents because of the unique characteristics of elections in our state.”

In response to a CORA request for anonymous voted ballots last October, Chaffee County Attorney Jenny Davis stated: “For a number of reasons, it is not an easy task to identify a total anonymous, unidentifiable voted ballot. “

In an e-mail response to a requested ballot review, Teak Simonton, Eagle County Clerk, commented: “The serial number issue is only one issue I have with allowing the public to view voted ballots. There are many reasons why this is ill advised, primarily related to protecting every voter’s right to absolute privacy of their votes.”

Watcher Lisa Cyriacks notified Kolwicz during the November 2011 Saguache election that she had observed unopened ballots in sets of 25 being batched with a sequential list of “their” voters, and flagged in a way that could be used to identify who voted the ballots. SOS personnel supervising the election were alerted and the ballots were resorted into larger batches.

Had Cyriacks not reported the suspicious activity, Saguache County could have been named in the suit, Marks said.

For updates on the suit and additional information go to: www.TheCitizenCenter.org

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