[EL] Court affirms public right to examine ballots

[Bev Harris]

Black Box Voting is involved in Colorado litigation to affirm the public right
to examine ballots as part of the public record. These lawsuits are proceeding
on several fronts since Colorado election clerks seem unwilling to follow
either the law or a recent court decision. Obstruction of the Colorado Open
Records Act regarding elections records has been taking place in four
locations: The city of Aspen, Saguache County, and now Mesa County and
Jefferson County.

The Aspen case is now before the Colorado supreme court; a lower court has now
affirmed public right to examine ballots in Saguache County.

The Colorado Clerks Association, a quasi-governmental organization with
participation paid for by taxpayers, but an organization which claims it is not
subject to either public records law or sunshine laws for its meetings, is the
primary opponent to public right to examine crucial election records.

The fight for public rights is being reported by Colorado media, including the
Denver Post (as you will see below in excerpt from their article, the Post is
clearly on the side of citizen rights) and today, the Valley Courier. Below is
my commentary on the issue and court cases. - Bev Harris

***

http://www.bbvforums.org/forums/messages/8/81711.html

A Colorado court has knocked down an anti-democratic effort by Colorado election
clerks who have been trying to block the public from inspecting ballots in
Saguache County, ruling that citizens indeed DO have the right to examine voted
ballots (which are, by the way, anonymous).

Public examination of ballots doesn't entirely guarantee that the count was
correct, but this is a key component of the public right to self-governance.

Public right to validate its own elections lives at the very core of our
constitutional right to self-govern. It is our tax money that pays for our
government; we own it. If government workers are allowed to be in position to
install themselves and choose representatives for us, we do not have true
control over selecting our representation. If we lack the ability to see and
authenticate our own choosing process, we actually are choosing our
representation only if those holding certain positions inside government want
to allow it. In a word: Unconstitutional.

Secrecy is antithetical to democratic systems, but if secrecy is allowed in the
choosing process itself, it crushes the bedrock on which the democratic system
sits. The public can never cede the choosing process over to government
insiders, based on "trust", because to do so actually removes the democratic
system, quietly replacing it with a pseudo, a con, a wish, a pretender.

The public must be able to see and authenticate four things in public elections:
1. Who can vote (voter list)
2. Who did vote (participating voter list)
3. Chain of custody
4. The count

Several states have enacted laws to prohibit the public from exercising its
right to validate its own elections. In Colorado, ballots are a public record
but certain election clerks have refused to comply with the Colorado Open
Records Act, denying public requests to inspect ballots and copies of ballots.

New Hampshire, in an act of legislative subterfuge (key records on this now
missing from New Hampshire state archives), quietly passed a law in 2003
containing an obscure paragraph which excludes ballots from right to know law.
(more: http://www.bbvforums.org/forums/messages/8/81673.html )

The public used to be able to look at ballots in Washington State, but
Washington recently changed the definition of "ballot" in its election
statutes, and is now using this changed definition clause to block citizens
from examining ballots.

Colorado clerks have tried to block the public from examining ballots to compare
with election results. An exception: El Paso County, whose clerk allowed the
public to inspect ballots there.

Examining ballots after they have been taken out of public view does not suffice
to validate the count, because #3, chain of custody, is missing. The same
government workers who have access to altering vote counts control the chain of
custody. The best way to use ballot examination to validate the count is at
polling places on Election Night. Any method that allows the public to see and
authenticate the count, before ballots leave public view, is better than what
we are doing now.

The Colorado decision validates public right to examine ballots in Colorado.
Florida routinely allows ballot examinations by the public. Michigan citizens
recently examined and videotaped voted ballots. As excerpt from the Denver Post
below points out, the sky doesn't fall, bug-eyed lunatics don't take over, the
government doesn't collapse when the public is allowed to examine its own
election documents:

* * * *

Denver Post - Sept. 4, 2011, by Vincent Carroll
http://www.denverpost.com/carroll/ci_18808723#ixzz1Wxz0g5cM

There, that wasn't so terrible, was it? Democracy didn't sputter out when
citizen volunteers were allowed to inspect - and yes, handle - ballots cast by
residents of Saguache County in a recent recount of last fall's contested
results.

Unwashed barbarians did not desecrate the sanctuary of our election priesthood,
as Colorado's county clerks all but predicted earlier this year when they were
denouncing the proposal. "We believe ballots are sacred," the president of the
Colorado County Clerks Association declared in commentary published in The
Post, adding that "the integrity of our elections is worth fighting for."

Yes, the integrity of our elections is worth fighting for. And that's why the
precedent in Saguache County is so important.

The breakthrough began when a judge ruled last month that "voted ballots are
election records" under the Colorado Open Records Act - a fact that should have
been obvious to county clerks but wasn't. Judge Martin Gonzales added that the
law "does not prohibit disclosure of ballots if the identity of the person who
cast the ballot cannot be discerned."

And yet how could it be discerned? Ballots contain no voter information, and the
law actually bars voters from marking them in any way that could reveal who
they are.

So it follows that voted ballots must be available to you and me just like other
public records.

... At a hearing last April in another open elections case, the state court of
appeals heard perhaps the silliest argument yet for concealing voted ballots.
According to a lawyer for Aspen, which is fighting an attempt by former mayoral
candidate Marilyn Marks to see digital copies of ballots from the 2009
election, an election judge might accidentally leave a chocolate smudge on a
voter's ballot and later recognize that ballot if it became a public document.

Fortunately, at least one member of the three-judge panel seemed skeptical of
this goofy theory. If we're lucky, the appellate court will issue a ruling that
goes even further than Gonzales did, since he exempted from release ballots
whose "content or structure may disclose the identity of the voter." Yet how
could such ballots exist so long as voters follow the law?

The stakes are enormous. In Saguache, the recount found fewer valid votes in all
three races it looked at than the county's certified totals. And while the
winning margins weren't threatened, the findings did at least prove that clerks
are not infallible.

Read more: Carroll: The sky didn't fall after all - The Denver Post
http://www.denverpost.com/carroll/ci_18808723#ixzz1Wxz0g5cM

* * *

ALSO:

Valley Courier -
Thursday, Sep 8th, 2011 BY: Teresa L. Benns
http://www.alamosanews.com/v2_news_articles.php?heading=0&page=72&story_id=21935

Mesa, Jeffco clerks seek court order to withhold CORA-requested ballots

DENVER — In an attempt to obtain a court ruling differing from Saguache District
Judge Martin Gonzales’ recent decision that ballots are public records, two
Colorado county clerks have simultaneously requested court orders to withhold
voted ballots from public inspection.

Mesa County Clerk Sheila Reiner and Jefferson County Clerk Pamela Anderson filed
almost identical documents seeking the decisions yesterday in Grand Junction
and Golden. Both clerks received Colorado Open Record Act (CORA) requests from
Aspen election integrity advocate Marilyn Marks last month and both refused to
supply the documents Marks requested.

Marks sought three specific types of voting records: the record of how each
anonymous electronic ballot was voted, primarily, but also computer audits and
system logs. Both clerks claim to have destroyed the computer audits and system
logs, despite the fact that federal and state law requires a two-year retention
period.

Denver attorney Robert McGuire, acting for Marks, filed suit against both clerks
late Wednesday night for the right to review the CORA-requested documents
rather than simply responding to the requests for court decisions.

“I chose to take a more active stance in the matter and litigate the issue
[because] it is too important to leave to a more passive process,” Marks
commented on the suit.

... In her e-mail to Marks denying the request for electronic ballots, Mesa
County Clerk Reiner wrote: “The EL155 is the iVotronic ballot log. This file
contains images of ballots, listed by precinct, and shows how someone voted.
This log is also printed for the extensive auditing process with the major
political parties.”

She claims that the “law is clear and the ballots must be kept secret.”

As Marks points outs, this means that only an elite cadre of clerks and
politicos would be able to examine votes, not the public.

...The files the two clerks seek to withhold are the same files produced by the
Electronic Systems & Software (ES&S) voting system, which have been used in
other states to test the reliability of the touch screen voting system. In
fact, the very record types that both county clerks claim to be “secret” have
been posted to the web by South Carolina election activists
(http://www.scvotinginfo.com ) and the South Carolina state auditor:
(http://www.scvotes.org/2011/08/03/2010_general_election_audit_files.) The
South Carolina legislature has now taken up the subject of the questionable
reliability of these voting systems based on their findings in reviewing this
election data.

“The public should be asking what is wrong in Colorado that election files
available in other states for election quality reviews and academic work cannot
be accessed here,” Marks said in an e-mail Thursday. “Public access to election
records is a fundamental requirement of democracy. Citizens and the press must
be able to verify their elections in order to fully exercise their rights to
self-governance.”

Mary Eberle, a member of Coloradans for Voting Integrity, e-mailed Thursday: “It
is unfortunate that expensive litigation of the type filed against Jefferson
and Mesa counties is necessary to gain citizen access to the most basic of
public records - the records of the citizens’ will at the ballot box. With the
success we expect from this latest legal effort, all other Colorado counties
will enjoy the same level of election transparency the citizens of Saguache are
beginning to experience.”

Eberle participated as an observer in the citizens’ review of Saguache 2010
votes last week to try and verify the troubled election in Saguache. While
numerous problems and tabulation errors were exposed, the process made all the
ballots available to anyone to see and count.

A review of all the ballots found none to be “personally identifiable,” counting
judges and observers at the review agreed.

* * * * *

(Note from Bev Harris: Thanks to Paul Lehto, a scholar on election rights, for
expertise on framing the rights issues. Thanks also to Deborah Sumner and Nancy
Tobi (Democrats), who helped me research the quiet action to exclude ballots
from right to know law in New Hampshire, and to Colorado litigant Marilyn Marks
(Republican), Harvie Branscombe (Democrat), Al Kolwicz (Republican) and the
other Colorado voting rights advocates, and to members of the Tea Party in
Washington State, whose efforts to examine ballots and audit logs were refused
recently, citing the newly revised ballot definition clause in Washington
election statutes.)

The effort to enforce the public right to see and validate our own election
records is truly nonpartisan.

Bev Harris
Founder - Black Box Voting
http://www.blackboxvoting.org

* * * * *

Government is the servant of the people, and not the master of them. The
people, in delegating authority, do not give their public servants the right
to decide what is good for the people to know and what is not good for them to
know. We insist on remaining informed so that we may retain control over the
instruments of government we have created.



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