The election ballot system used by Boulder County is at the center of a standoff between Secretary of State Scott Gessler and several of Colorado’s county clerks.
And someone has to blink soon, since the deadline for printing ballots is fast approaching.
In addition to Boulder County Clerk and Recorder Hillary Hall, the players include Marilyn Marks, an Aspen activist who has filed suit against Gessler and a number of counties for using ballots printed with information that can be used to trace the identity of voters, contrary to state law.
After being confronted with the outcome of Marks’ investigation, in which she and others demonstrated how to track ballots from a June primary election in Chaffee County to the individuals who cast them, Gessler recently issued an emergency rule saying counties could no longer use the serial numbers or bar codes in question. The rule also requires clerks to black out that information when releasing past voted ballots under the state’s open records act, in an attempt to mitigate the damage done and prevent any further tracing.
Boulder County’s Hall is among the clerks who have argued against the new rule, saying the numbering system is crucial to running a smooth election. This week, Hall asserted that she can continue using the codes in question and comply with the new rule, as long the numbers are not unique and are repeated, so that they are assigned to multiple voters and cannot be tracked down to any single individual.
But some, like Marks, don’t think Gessler’s rule goes far enough, because it doesn’t keep government and election workers from seeing the code and raising the possibility — however remote — that one of the most basic tenets of a successful democratic election, the confidentiality of voter identities, could be compromised.
Longtime local election reform activist Paul Tiger of Longmont acknowledges that the bar codes and serial numbers on ballots may in fact help track down election flaws like those that occurred in Boulder County in 2004, but that doesn’t change the fact that they are in clear violation of state law. One of the two has to be changed, he says.
The Colorado Constitution contains the following sentence: “All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballots can be identified as the ballot of the person casting it.”
According to Marks, maintaining the confidentiality of how one voted is crucial to avoiding voter fraud, which has reared its head over the course of U.S. history in the form of things like bribes and coercion for votes. The state’s constitutional language around such ballot secrecy dates back to the late 1880s and 1890s. Marks notes that the constitution was even amended by the citizens of Colorado in 1946 to remove the rights of judges to inspect ballot codes (which until that point had been sealed under opaque glue under one folded corner so that any tampering was readily evident) in cases of suspected election fraud.
“We were saying, ‘We’re willing to take the chance of fraud here and there,’” she says of the constitutional amendment. “Even a guy in black robes cannot know how you vote. Now Clerk Hall and others have taken us back to before 1892.”
That 1946 amendment predates Colorado’s open records laws, which Marks says makes her case that the citizens were initially and primarily concerned about government access to voting records, an issue that she claims Gessler’s rule does not address.
“It’s not just the public they’re talking about, it’s the insiders,” she says.
Marks goes so far as to assert that the language in the constitution even precludes voters from being able to identify their own ballot later by jotting down the serial number. Conceivably, she says, voters could provide that number to an election worker or canvass board member, who could track down their ballot as evidence that they voted the way they were coerced or bribed into doing.
In Chaffee County, Marks credits Mark Arnold, a Buena Vista chimney sweep, with cracking the code by adding four digits to a data matrix printed on each Republican primary ballot stub and envelope and using that information to find the voter’s name.
“It was very easy to do,” she says. “We all got very nervous about it when we realized how easy it was to go back and find out how someone voted.”
Her group, Citizen Center, filed a restraining order on Aug. 17 against Gessler, Hall and the clerks of Chaffee and Eagle counties.
Secretary of state’s office responds
Gessler’s emergency rule was issued three days later. It says counties may only use a “unique or sequential number” (or a bar code representing that number) on the removable stubs that some counties use to disassociate a voted ballot from any identifiable information — while still being able to make sure no voters or ballots were counted more than once. In what Marks calls an apparent acknowledgment that past ballots used codes that could be traced to voters, Gessler’s rule also requires clerks to redact such numbers when past ballots are requested by the public.
Some, including Marks, say the acknowledgment of possible voter fraud throws the validity of the last round of primaries into question. One unsuccessful Republican candidate, Lu Ann Busse, even filed suit against Gessler and the clerks of Douglas and Teller counties on Aug. 27, claiming that the traceable ballots and other primary election violations preclude Gessler from certifying the general election ballot as required by law on or before Sept. 10.
Andrew Cole, a spokesperson for the secretary of state’s office, told Boulder Weekly that county clerks have said they need the serial numbers and bar codes to tabulate results and help ensure that no votes are counted more than once. They have also repeatedly assured Gessler that the codes are randomized and can’t be traced back to voters, Cole says, but Marks’ discovery disproves that assertion, prompting the emergency rule.
“To her credit, she did figure it out,” he says of Marks’ inquiry.
When asked what will happen if county clerks don’t comply with the rule, Cole says, “Ultimately, we would take them to court and ask a judge to force them to comply.”
He says counties will be expected to use a line of zeroes in the area where the current serial number is printed, adding that there are alternatives that counties can use, such as grouping ballots together in smaller batches, like subsets of 25 instead of 250, so that any irregularity is detected quickly.
In response to Republican Busse’s claim that the traceable ballots used in primary elections jeopardize Gessler’s ability to certify ballot content for the general election, Cole says the secretary of state’s office “will be filing a motion to dismiss her lawsuit.”
He adds that it is the questions and candidates on the ballot, not the serial numbers and bar codes, that must be certified by Gessler by Sept. 10.
Dozens of Colorado counties use the same Hart Ballot Now voting system employed by Boulder County, but Marks says a couple have opted to suppress the serial numbers in question. She says there are several ways to avoid voter fraud without using the codes. Other counties, including Denver and Jefferson, don’t use the Hart system. In Marks’ home county, Pitkin, a stub containing the ballot number is torn off before the ballot is inserted into the ballot box, separating the ballot itself from any specific voter information. It gives election workers a way to see who voted, but not how they voted.
Marks estimates that Boulder County’s Hall hires between 1,000 and 2,000 election workers and volunteers who take an oath before getting access to the ballots, “and we’re not supposed to worry about it,” she says. “It’s dangerous in the hands of the government.”
Marks acknowledges that the ballot serial numbers are not included in Boulder County voter records, but she says they are part of what is sent to the company that prints the ballots, and those files can be traced back to individual voters.
“In counties one after another, including Boulder, you can bust out the system and find out which ballot went to which voter,” she says. “This is a huge potential meltdown for November.”
Marks adds that Hall’s office has been “absolutely obstructionist in turning over their voted ballot files.” The edges of the ballots that she got from Boulder County were cropped to eliminate all of the identifying numbers and bar codes.
(House Bill 1036, a piece of legislation passed last spring that allows clerks to withhold ballots in certain cases and time periods — contrary to a 2011 court ruling making them open records — was opposed by Marks’ group and others, but supported by the county clerks, including Hall.)
Local election officials responded to a draft of the emergency rule in an Aug. 17 letter from Deputy Boulder County Attorney David Hughes to Gessler. In that letter, Hughes says Hall “believes that adoption of the rule in its proposed form is contrary to state law, that the draft Rule conflicts with other Election Rules, that the rule is unnecessary and overbroad, and that it has the potential to disrupt the 2012 General Election.”
In an interview this week, Hall told BW that she still has concerns about whether Gessler had the authority to issue such an emergency rule, especially so close to the general election, but she is confident that Boulder County’s system already complies with the rule.
She says the numbers her office uses are neither unique nor sequential. Not only is it possible for multiple voters to receive ballots with the same number, groups of ballots are generated by more than one machine and then shuffled at least twice — by county election staff, not an outside vendor — so that they are not in any particular order.
“It doesn’t have to be either/or,” Hall says of the possibility of having both a numbering system and confidentiality. “Of course, anonymity is our top priority, and has been. The issues that happened in Eagle and Chaffee counties, they use the system very differently than we do, and we don’t have those issues. We were trying to get [Gessler] to look at the differences, as opposed to making a blanket emergency rule in a very short time period.”
She adds that Boulder County used the same approach during the primary, so there is no need to worry about past local votes being traced.
“We’ve never had a ballot tied back to a voter that has been brought to our attention in Boulder County since we started using this system,” Hall says.
When asked whether she was surprised when she heard about the ballot-tracing in Chaffee County, she replies, “Very.”
But she says the same thing won’t happen here.
“There will be no unique numbers,” Hall explains. “We will be looping the numbers so that multiple voters will have the same number on their ballot. … We do believe fully that it is in compliance with the emergency rule.”
When asked if the secretary of state has confirmed that Boulder County’s system complies with the rule, Hall says, “They’ve received it, they have not followed up with it, so we’re proceeding with our intended plan.”
When informed that the secretary of state’s office expects clerks to use zeroes for all of their ballot numbers, Hall replies, “We have been in contact with them, and we have not heard anything contrary at this point, so we believe we have a solution that they haven’t thought of, which is not surprising. We’re the ones who spend all the time with the system, and we’ve been looking at this issue since January of this year.”
Hall says the numbering system is important because it allows election workers to easily locate a ballot when there is a problem scanning it.
“Imagine the whole stack has the same number on it, and you have to go figure out which ballot the system is rejecting,” she explains. “That’s why we want ‘unique enough,’ like five or six in a batch is not a big deal. When every thing in the batch is the same, that’s a really slow, manual process to figure out what’s going on.”
The issue must be settled one way or another soon, since the printing of Boulder County ballots begins the week of Sept. 17.
Hall adds that Boulder County has a host of other checks and balances in place, besides the numbering system, to halt election fraud, including a signature verification system for mail ballots and security measures that make photocopied ballots readily detectable.
She acknowledges that there seems to be conflicting guidance in state law and election rules (she and Hughes argued in their Aug. 17 letter to Gessler that one of the state’s rules actually requires clerks to use a unique identification number on ballots). But the priority for now, Hall says, should be how to conduct this election smoothly, saving bigger questions for 2013.
“Having counties completely change how they’ve done things this close to a major election has its own risks and problems it can create, and so we are happy that our solution will allow us to maintain the efficiencies that we’ve gained and still ensure that ballots are anonymous, as they have been,” she says. “To make major changes like this to people’s processes in a county of our size, with multiple-page ballots, you’re introducing a lot of unknowns.”
Hall also admits that her ballot-tabulating system, which was purchased in 2004, has its limitations.
“Right now, we’re in the mode of how do we most effectively use what’s already been purchased, because the system we want hasn’t been created yet,” she says.
Still, the question remains: Why, if Boulder County’s system does not allow for tracing a ballot to its voter, would there be any need for Hall to redact the serial numbers when faced with an open records request?
“There is no compelling reason to release ballots with barcodes and serial numbers attached,” Hall replies. “The purpose of releasing images of voted ballots to the public — a policy I support — is to let interested parties review the voter selections and ballot content to look for problems. It’s not to let people try to figure out whose ballot is whose. Redacting this information is a good practice. It’s an extra layer of protection to ensure voter anonymity.”
Of course, another compelling reason for not removing the identifying marks before releasing ballots may be that it could allow people to test whether, in fact, individual voters can be traced.