The secret ballot is in danger in Colorado

The Polling (detail) by William Hogarth (1755). Before the secret ballot was introduced, voter intimidation was commonplace.

COLORADO SPRINGS, July 27, 2014 —Colorado District Court Judge Stephen M. Munsinger Thursday upheld the results of a flawed election for the West Metro Fire Protection District despite evidence showing conclusively that the secrecy of ballots cast by electors was breached on multiple occasions.

The election was held on May 6, 2014. The Election was an “independent mail ballot election” under the second of two new Colorado voting laws (House Bill 1164) passed in this year’s general session. The election sought to decide three contested races for District’s Board of Directors and a mill levy increase.

The West Metro Fire Protection District covers a large area of the suburbs west of Denver.

In the past, many such elections were handled by the country clerk and recorder’s office; now, independent districts like this one are encouraged to hold the elections themselves. In addition, all Colorado elections are now to be handled as all-mail ballot elections.

The ballot counters were overwhelmed and inexperienced. In the previous District board election, that did not include a taxing question, 515 votes were cast. In the District special election in 2006, which had both directors and a mill levy increase on the ballot, 5,249 votes were cast. This time, more than 34,000 votes were cast.

That in itself wouldn’t have been so bad but the new laws also mandate sending ballots to inactive voters. Inactive voters in Colorado haven’t voted in the last three elections.

The result is the potential for a lot of confusion—and that’s exactly what happened in West Metro.

The lawsuit and election challenge, filed by the Colorado Union of Taxpayers (CUT) on June 2nd, alleged that the West Metro elections systemically violated the right to a secret ballot guaranteed in Article VII, Section 8 of the Colorado Constitution.

Evidence presented at trial showed:

  • Voted ballots were viewed simultaneously with voter identifying information
  • Simultaneous visibility of votes and voter information was systemic, not accidental
  • Voted ballots were systemically additionally marked with voter identifying data
  • Lack of ballot secrecy was publicly known, potentially dissuading voter participation

In short, in order to catch duplicate voting, the voted ballots were removed from their secrecy sleeves and marked with the voter’s name on a sticky note! At first, the officials from the Fire District counting the ballots denied wrongdoing. When subpoenaed for surveillance camera tapes, they claimed that the tapes did not exist.

After repeated attempts, the tapes were finally produced but portions had been edited out. Finally, they admitted that election officials had seen the completed ballots, but denied on the stand that they had actually “looked.”

It was the classic “Sergeant Schultz Defense”: “I saw nothing, Herr Commandant. I heard nothing.”

Deputy Secretary of State Suzanne Staiert testified that the District’s use of sticky notes in the election “are inconsistent with our rules, they are inconsistent with the Constitution; it is a marking on the ballot that identifies the voter.”

Nevertheless, Judge Munsinger essentially ruled that because no one had admitted to committing a felony in the vote-counting process, there was not “affirmative evidence” that any wrongdoing had occurred.

Had he found that widespread violations of ballot secrecy had occurred, the appropriate penalty would have been to void the election. This he declined to do. The case is likely to be appealed.

In the meantime, your Colorado secret ballot is still safe: Elections officials promise not to tell.

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