Aspen election activist suing Colorado secretary of state over traceability of ballots

By Troy Hooper
Real AspenApril 3, 2012
The challenges mounting on Colorado Secretary of State Scott Gessler's desk go beyond whether to mail ballots to residents who haven't voted in a while. He has another predicament: bar codes.

Unique identifying numbers, or bar codes, that can trace citizens to how they voted appear on ballots in dozens of counties in Colorado — a revelation that is not only troublesome but possibly illegal.

Ballots are not allowed to have "distinguishing marks," according to state law.

A coalition of Colorado voters is suing Gessler (pdf) and a half dozen county clerks in a Denver federal court, contending the officials are presiding over unconstitutional elections. The litigation stems from a separate dispute over whether cast ballots should be made public so that elections can be verified by someone outside of government. When clerks argued ballots could not be seen by members of the public because it was theoretically possible to figure out how specific people voted in certain elections, the bar code problem became apparent.

"We didn't think the clerks were serious. We thought they were pulling our leg, putting up a smokescreen," said Aspen-based election activist Marilyn Marks. "We didn't think it was true, but it is."
Marilyn Marks



Marks and a handful of other activists across the state soon learned that 46 counties in Colorado use Hart brand ballots that have bar codes affixed to them that are not torn off before they are tallied. Their lawsuit asks the court to prohibit the government from placing identifiers on ballots, or otherwise using mechanisms to track vote choices, both of which the suit says are already against the law.

"We're suing Gessler because he hasn't enforced the law and we think he should," Marks said.

Messages left for Gessler and his spokesman were not immediately returned.

In a letter (pdf) to election activist Al Kolwicz in Boulder last fall, the Secretary of State's Office acknowledged that ballots can be traced in many counties.

"During the ballot verification and counting processes, it is beneficial for election officials to maintain procedures for tracking ballot batches," the letter states. "These processes allow election officials and judges to quickly identify problems. But 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."

Michael Hagihara, the state's voter registration and elections manager who penned the letter, wrote that state officials are working to solve the problem by preventing the public from viewing identifiable ballots. The Colorado Court of Appeals, however, ruled that voted ballots are public records and should be available for public inspection. That case is being appealed to the Colorado Supreme Court.

"The problem is they think it is OK if the government knows how we vote. Government officials are the last people in the world who should know how we vote," Marks said.
Image courtesy of Citizen Center



State officials and election clerks counter that they never trace votes or abuse their power.

The secretary of state is already the target of a potential recall. Gessler's detractors believe his Republican partisanship is so overt that it is compromising the ethics of his office. Specifically, they complain of Gessler's mandates to make voting more difficult. He has claimed that some of the measures he is taking are designed to ensure that non-citizens don't vote in U.S. elections.

In addition to Gessler's office, clerks in Boulder, Chaffee, Eagle, Jefferson, Larimer and Mesa counties are targets of the lawsuit that Marks and her group filed. A former owner and CEO of a trailer manufacturing firm, Marks lives in Aspen where she ran for mayor in 2009. She lost the election but learned a lot about voting in Colorado. She grew so troubled with what she discovered that she now has eight active lawsuits in the state demanding improved election quality and transparency.

Messages left for the Colorado County Clerks Association were not returned.


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