Wherever you go in Colorado, the most public-be-damned civil servant is likely to be the county clerk.
I’ve reached this conclusion with regret, since my experience with clerks over many years, without fail, has been pleasant and fruitful. But the clerks this year have dug themselves into a stance that endangers the integrity of elections. Moreover, to protect their monopoly on access to voted ballots — a monopoly to which they clearly have no right under the Colorado Open Records Act — they are trying to scare the public with lurid tales of how voter anonymity is at risk.
Back in March, you may recall, the clerks association denounced a bid by Secretary of State Scott Gessler to conduct an official, public recount of a contested election in Saguache County, claiming his “proposal sets a dangerous precedent.” The clerks’ real fear, however, was not that Gessler might look over their shoulder but that he would let the public do so, too. And he did — once a district judge ruled in August that “voted ballots are election records” under the open records law, permitting the recount to proceed.
Defeated in Saguache, the clerks have now manned the barricades in Mesa and Jefferson counties to beat back requests to inspect ballots. Those disputes are in court, too. In both cases, the clerks balked at a request from Marilyn Marks, an Aspen resident energized by the lack of transparency in a municipal election, for records of electronic ballots from touch screen machines.
The Mesa clerk and recorder, Sheila Reiner, told Marks that state law mandates voter secrecy — the actual wording is “secrecy in voting” — and then went on to claim, “It is also public expectation that their ballot is secret.”
No, it’s not — or shouldn’t be. Ballots must be anonymous, yet the difference between secret and anonymous is one the clerks continually fudge.
They also repeatedly raise the specter of citizen sleuths deducing how people voted in small precincts. In an interview on a Grand Junction radio station, for example, Reiner explained that “in 2010, we had two precincts . . . where we had less than 10 people vote in a certain method.”
Radio host: “So you would know right away what was what.”
Reiner: “Well, yeah, all you’d have to have is the voter participation report which we’ve already released, which says that these seven individuals, or five individuals or however many that it is, voted early from this certain precinct.”
Host: “And then you would be able to identify it . . . .”
Actually, you would not be able to establish how a handful of people voted unless they all voted the same way. That’s possible, if surely rare, and Marks in her request said the clerks could withhold such ballots. Moreover, is Reiner really saying that if everyone in a small precinct votes the same way on a popular ballot issue, which must occur on occasion, a clerk is barred from releasing that precinct’s tally?
The deeper problem with the clerks’ position is that state law does not make exceptions for anonymity. Clerks have no more right to know how you voted than I do. If they’re saying that partisan officials — that’s who they are — can tell how hundreds or thousands of Coloradans voted by comparing voter lists with cast ballots, then those ballots are already compromised in the eyes of the law.
“Either voter anonymity is compromised or it’s not,” Robert McGuire, Marks’ attorney, told me. “If a tree falls in the forest and only the clerk is there to hear it, it still makes a noise.”
If ballot anonymity is threatened by the way clerks group ballots, then they should support a law reforming the process.
Meanwhile, as Marks notes, “ballots have been reviewed by the press, citizens and even posted to websites for years” in a number of other states. “Has there been even one complaint of a ballot being traceable or traced?”
“Why should this be such a big problem in Colorado?”
E-mail Vincent Carroll at vcarroll@denverpost.com.
