Clerk and recorders in Colorado are criminally liable if someone’s vote is disclosed. It’s that simple. There is no leniency if it happens to only a few voters. There are no exceptions if the circumstances are beyond control. Voter privacy is so important in Colorado that if someone can identify your vote, your clerk has committed a crime.
But a recent court ruling has made voted ballots a public record on par with meeting minutes or government e-mails. We have serious concerns that without action from the state legislature, voters will be forced to have their votes disclosed.
The Colorado Court of Appeals ruling stated that ballots with identifying markings should not be disclosed, but that is not sufficient for voter privacy. 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 fact, there are already laws on the books to protect voters from disclosure of their private choices because of unique ballot styles. In the last general election, state law required nearly every county to report select ballots in a special way to protect voter privacy. In Jefferson County alone, more than 1,000 results were protected. But turning ballots into public records exacerbates the privacy problem on an unnerving scale.
To test the validity of privacy concerns, Larimer County Clerk and Recorder Scott Doyle used publicly available records and discovered the ballot he personally cast in 2010 can be tracked to a box where no other ballot is the same style. If that box is made public, anyone could request his unique ballot and know exactly how he voted. Doyle used the same publicly available records on a random sample of voters: namely the elected officials representing Larimer County at the state legislature. Of those six public officials, three of them cast ballots that are unique in the box they are stored. Recovering those ballots would surely take time and motivation, but the opportunity exists if ballots are public documents.
Doyle’s test is possible because of conflicting provisions in our state constitution, the tremendous number of special districts, and transparency requirements in elections by state and federal law. We are required by law to generate and distribute detailed reports on how the public votes, and we are required to track your ballot so that our election processes can be audited.
The Clerks Association values transparency every bit as much as we value voter privacy. Our concern is that the recent ruling has pitted transparency and voter privacy against each other. Complying with the appeals court ruling will force us to literally cut the security seal another judge has placed on our ballot boxes.
We understand the desire to debate the merits of ultimate transparency against the value of voter privacy. We are advocates for both, but this conflict is no longer simply philosophical. We have pending requests for ballots now. Our concern is that the appeals court ruling could force us to jeopardize voter privacy.
We are asking the General Assembly and the secretary of state to work cooperatively to ensure the public does not have to choose between transparency and voter privacy.
Pam Anderson is clerk and recorder of Jefferson County and vice president of the Colorado County Clerks Association.
