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September 29, 2011 08:44 PM UTC

Gessler Gets One Right?

  • by: Phoenix Rising

Today the Colorado Court of Appeals issued its ruling in a case filed by Aspen 2009 Mayoral hopeful and election activist Marilyn Marks.  Marks sued under Colorado’s open records act to gain access to the electronic images of ballots from the 2009 election which she lost.

Although the suit was filed against Gessler in his role as Secretary of State, Gessler has stated in the past that he believes making voted ballots part of the public record would increase transparency and voter confidence – and IMHO, he’s right.

Today’s Court ruling affirms that view.  Voted ballots (and/or electronic images) should be made available to the public provided the voter’s identity cannot be matched to their ballot.

The County Clerks opposed this suit, probably because it could impose a significant burden on their offices.  However, even as someone critical about the lax security we now place around our voting systems, I cannot see any other downside to the ruling.


16 thoughts on “Gessler Gets One Right?

      1. can tie it to a particular voter?

        I don’t want my property tax assessment, including how many bathrooms I have and whether or not my hot tub is in good repair, to be a public record. (I don’t have a hot tub. They’re going to know that, too!) But it is.

        1. The statutes require precinct-level reporting.  A member of a minor party (Libertarian, American Constitution, Green, etc.) might be the only member of his or her party in a given precinct and his or her identity would become known.

          This problem was the basis of the County Clerks Association’s Amicus brief in this case.

          1. in Saguache County, when the public ballot-by-ballot recount was recently done by court order, over the objections of the clerks?

            Saguache County is one of the least-populated counties in the state, with a number of very small precincts.

            I have extremely high confidence in our current (and past) clerks in Mesa County, but that’s not necessarily the case in other counties, particularly very small ones.

            I don’t suspect nefarious motives, just whether the competence is there. You’ll recall the Montrose County clerk’s office had numerous problems several years back, requiring then-SOS Mike Coffman to step in and force the office to enter the 20th Century just in time for the 21st. There was no suspicion whatsoever of intentional wrongdoing in that case, but the systems and overall competence weren’t there.

            Not all clerks are created equal, yet citizens are supposed to extend unconditional trust?

            1. the recount was done by sworn election judges, the same sorts of people who counted them in the first place.

              Rather than sending the ballots to the SoS office, SoS personnel came to Saguache County to observe the recount.

              Neither safeguard will be required now that the Court of Appeals has ruled the ballots public records.

                  1. 8.11  Watchers,  Official  Observers  and  Media  Observers  at  a  Recount.   Watchers,  Official  Observers and  Media  Observers  may  be  present  at  a recount.    Watchers,  Official  Observers  and  Media Observers must be qualified and sworn for a recount in the same manner as provided in Rule 8.2 and  are  subject  to  all  other  provisions  related  to  the  recount  process.    Any  political  party, candidate involved in the recount or proponents or opponents of an issue or question involved in the  recount  may  appoint  one  Watcher  to  be  present  at  any  time  during  the  recount.    The candidate who is subject to a recount may appoint him or her self, or a member of the candidate’s family  by  blood  or marriage,  as  a  watcher  at  a  recount.    See  sections  1-7-105  and  1-7-106, C.R.S.

                    A “Media Observer” is defined in the rules also:

                    8.1.3  “Media Observer” shall mean an observer with valid and current media credentials from the  media  who  shall  adhere  to  the  formal  document  “Guidelines  for  Members  of  the Media  Who  Observe  Election  Counts  and  Recounts”  dated  June  2004,  as  may  be amended, which are incorporated herein by this reference for all proper purposes.

  1. If there is a way to identify the voter by releasing their ballot, than this is wrong.

    In Pitkin County, for example, there is a voter who will be the only one using a specific ballot style. If identified under a CORA request, the state, or other party, has violated their constitutional right.  

    Other rural counties face the same issue.

    There are ways to fix this, possibly through SOS rulemaking, but I have little faith in the SOS.

    I don’t think Gessler is right. I think he’s wrong on this, as with most everything else he is doing in office.

    1. is by following the ruling as it was written, not by imagining it says something it doesn’t.

      Voted ballots

      should be made available to the public provided the voter’s identity cannot be matched to their ballot

      Just as with all public records, the custodian of records can deny a request if the records in question don’t fall within the definition of public records or if there’s an exclusion for those particular records.

        1. Seems pretty clear to me until you get to really weird cases.

          * If there’s any mark identifying the voter, it shouldn’t be disclosed.  (E.g. some electronic systems use spooled records, and others use ballot numbers which match the stub numbers recorded by the election judges.  Either of these could be used to recreate just who filled out which ballots.  This indicates a failure of security in the voting system that should be addressed.

          * If there’s something special about the voter, e.g. they’re the only one voting on a particular ballot layout, then they can be identified and it shouldn’t be disclosed.

          PS – Car, WTF is up with someone being the sole person on a particular ballot style?  Is that the result of Congressional redistricting as done by the courts?  Because that’s just plain dumb and indicates a need to change the law, not this ruling.

          1. WTF is up with someone being the sole person on a particular ballot style?

            Most often by special district elections.  In Mesa County, for example, there’s a sewer agreement that provides that any property that develops in the sewer district is automatically annexed into the City of Grand Junction.  That changes potential ballot styles on nearly a weekly basis–City Limits change without regard to precinct lines.  We also have school districts, fire districts, irrigation districts, etc. If any of these districts has an election it results in ballot styles that are independent of precincts or legislative districts.

            As to how there might be only one person on a ballot style, a while back the County Commissioners browbeat a developer to form a special taxing district in a portion of unincorporated County before they would approve his development.  Although the idea at the time was to expand this district, had an election been held early on, it would have had a one-person ballot style.

            Congressional redistricting is about the least likely reason for unique ballot styles.

          2. In addition to what Ralphie wrote, due to the huge number of special districts we have in this state, there is a liklihood that individuals could be identified based of the information on their ballots.  That is wrong. Could happen in Pitkin, Mesa, or Gilpin.

            There is an existing process for review that continues to work. Allowing private ballots to be subject to a CORA request is abusive and over the top.

            Personally, I don’t want want anyone seeing my ballot except those trained within the system. With today’s data mining capabilities and campaign sophistication, I don’t trust that my vote would be safe or secure if subject to CORA!

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