The majority of the group charged with certifying the results of the Boulder County election has started meeting early, in defiance of Boulder County Clerk and Recorder Hillary Hall, in part due to concerns like the possibility of ballots being traced back to voters.
It’s a colorful twist on a normally bland process, a twist that could hamstring the results of the county’s election — in a year when the outcome of the presidential race might be determined by Colorado.
The possible tracing of ballots in Boulder County, as first reported by Boulder Weekly on Sept. 6, has been addressed by Hall, who claims that a new plan she has submitted to Colorado Secretary of State Scott Gessler reduces the chances that serial numbers or bar codes printed on ballots could be used to identify the voters who cast them.
But she seems to have some opposition. In an odd side effect of former gubernatorial candidate Tom Tancredo abandoning the Republicans for the American Constitution Party (ACP) in 2010 — and securing more than 10 percent of the votes — the ACP is considered a major party for the upcoming election and has the right to appoint members to local canvass boards.
Canvass boards, historically, have been formed after elections to certify the results. Political party chairs from each county — traditionally only Democrats and Republicans — each appoint two members to the board, who are joined by the county clerk.
But this year, due to the American Constitution Party’s newfound power, two ACP appointees have joined forces with the two Republican members of the county’s canvass board, forming a bloc that outnumbers the two Democrats and Hall.
Among the Republicans is Daniel Martin, who unsuccessfully ran against Hall in the county’s 2010 clerk and recorder race. The other Republican, Russ Boehm, was elected chair of the canvass board at its first meeting at Carelli’s in Boulder on Sept. 25. County ACP Vice Chair Ralph Shnelvar appointed Jim Remmert and Mary Eberle, both of whom attended that first meeting as well.
The four have found common ground in their concerns about the upcoming election, but have been largely rebuffed by Hall in their efforts to begin researching and monitoring the election process early. In addition to being shut out of the ballot-printing operation last week (see related story at right), canvass board members said earlier this week that their open records requests have fallen on deaf ears.
So far, Hall’s office has refused to recognize the existence of the so-called canvass board, even as the group has taken pained efforts to swear themselves in, record and give public notice of their sessions, elect a chair and follow Robert’s Rules of Order. Deputy Clerk Molly Tayer wrote a terse message to Eberle on Sept. 24, the day before their first meeting: “Thanks for the notice of your meeting at Carelli’s. We will not be attending and we will not post a notice. As stated earlier, the Canvass Board has not been convened. The clerk will notify and inform individuals appointed by the major parties when it is time to schedule and begin canvass work. Given that the statutory-defined Canvass Board activities require that the vote be tallied, the group will be convened and sworn in sometime during the week of November 12, after the vote has been tallied.”
The two appointed Democrats have declined to attend the rogue group’s initial meetings as well, and in a letter to Shnelvar and Boulder County Republicans Chair George Leing, Boulder County Democratic Party Chair Dan Gould wrote that he has “serious concerns at this point about these actions, as they appear to constitute at best a basic misunderstanding and at worst a deliberate attempt to expand and exaggerate the scope of the responsibilities and obligations of the Canvass Board.”
Hall states that the duties of the canvass board as defined by state law are narrow. According to statute, the board simply confirms that the number of ballots counted does not exceed the number of ballots cast, or the number of registered electors in the precinct, and certifies the clerk’s abstract of votes, or the election results, and sends that certification (or noncertification, as the case may be) to the secretary of state.
“We see the canvass board as a post-election board,” Hall says. “The canvass board doesn’t exist yet.”
She adds that she understands the group’s desire to meet in advance, but says proposed policy changes will have to wait until after the election.
“They are welcome to meet amongst themselves and discuss whatever they see fit,” Hall says. “I get the conversation, absolutely, but right now we’re in the middle of implementing an election.”
So, what if the four-person majority of the canvass board is unsatisfied with the integrity of the election process and declines to certify the results? Hall says she would refer the matter to Secretary of State Scott Gessler, who could certify the election results without the canvass board’s consent.
Indeed, it seems that Hall holds the upper hand when it comes to the formation of the canvass board. Deputy Secretary of State Suzanne Staiert, citing state law, says the chairs of the county’s political parties certify their appointments to the clerk “in the manner prescribed by such clerk and recorder.” This language, she says, implies that the clerk determines the conditions under which the canvass board is convened.
“If it’s not in a manner prescribed by her, I don’t think they are [convened],” Staiert says.
She adds that, typically, canvass boards do not elect a chair or use Robert’s Rules of Order.
“They want to be a citizen oversight board, and that’s not what the statute calls for,” Staiert says of Boulder County’s rogue canvass board.
“Historically, we haven’t had this kind of issue,” adds secretary of state spokesperson Andrew Cole.
Among the points of contention is the definition of the term “conduct of the election.” Those designated as “watchers,” which some canvass board members have applied to be, are allowed by state statute “to witness and verify each step in the conduct of the election from prior to the opening of the polls through the completion of the count and announcement of the results.” Election reform advocates like Marilyn Marks of Aspen, who heads the Citizen Center and who has filed lawsuits against counties and the secretary of state out of concerns that voter anonymity has not been preserved due to the use of ballots with serial numbers, maintains that the term “conduct of the election” should be viewed broadly to include all aspects of the vote.
Hall and Staiert, however, seem to be on the same page, claiming that the term “conduct of the election” refers only to the section in the statutes of the same name. Marks, whose influence on the rogue Boulder County canvass board is apparent, rightly points out that there are other areas in statute where the term “conduct of the election” is used and clearly is not referring only to Article 7, the election statutes.
When asked whether this type of political wrangling has gone in the past on canvass boards, Staiert replies, “Only since Marilyn [Marks] got involved.”
Longtime election attorney Brett Lilly of Wheat Ridge, who has served as both a watcher and a canvass board member in Jefferson County, says the standoff between Boulder County’s rogue canvass board and Hall comes down to transparency. He says there’s nothing in the law that prohibits the canvass board from meeting early, and nothing that requires it.
“So the people on the canvass board are going to say, look, nothing’s stopping you from doing that, so let us do it,” Lilly told BW. “And the clerk is going to say, well, it’s up to me to make the rules.”
But he adds that a clerk who has nothing to hide might want to err on the side of letting the board see everything it wants to see to fulfill its mission of certifying that the election went off without a hitch.
“The lack of transparency seems, to me, to be questionable,” he says. “There’s no harm in letting them meet early, and there’s no harm in letting them be there to help out the clerk and recorder to do it right, just like there’s no harm in allowing transparency to watch the ballots.”
Lilly adds that a clerk’s defensive reaction is a red flag.
“That’s what really gets me, is that all these clerks really seem to be covering their ass, and the opposite should be true, they should really be open, is the way I look at it,” he says. “It seems to me, if they would just open up, a lot of these skeptical, cynical questions would go away. It just seems like they’re making a much bigger deal out of it than needs to be made.”