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Scott Gessler adopts emergency rule to prevent ballots from being traced to voters

After a voter advocacy group offered proof that county clerks and other election officials could identify how specific people voted -- which would violate a citizen's basic right to a secret ballot -- Colorado Secretary of State Scott Gessler announced an "emergency rule" effective immediately that will prevent officials from linking ballots to voters.

It's a big win for activist Marilyn Marks, who has been criticizing the system for more than a year. But at least one county clerk thinks the rule change will only create a whole host of headaches come Election Day.

The rule announced late yesterday afternoon is a noteworthy move for Gessler, who has faced numerous lawsuits and considerable criticism from government watchdog groups and other political organizations as the November election nears.

Gessler, whose office oversees elections across the state, was most recently dealt a blow by Denver District Court when a judge rejected a series of election rules that he had rewritten. In that case, rule changes had angered several good government groups that argued that Gessler was overstepping his bounds as a member of the executive branch of government not charged with actually writing rules -- and the court seemed to agree on many counts.

In this latest development, Gessler is definitely making a rule change -- but this time, an advocacy watchdog group is applauding the effort.

Here's the basic problem and how Gessler's office hopes to address it: According to Marks, founder and president of Citizen Center -- a non-partisan, non-profit group that focuses on accountability and transparency in elections -- in 44 counties across Colorado that use the same system, unique barcodes on the ballots allow officials with access to the ballots to eventually trace them back to individual voters.

Example of a unique barcode on a ballot in Chaffee County.
Example of a unique barcode on a ballot in Chaffee County.
Courtesy of Marilyn Marks

As Marks charged in her lawsuit against six county clerks and the secretary of state, that means that voters could be pressured to vote a certain way (by an employer, for example, who has a contact within the elections office), or could be intimidated from going to the polls at all due to privacy concerns.

And it seems that Marks has finally been able to dig up evidence that has convinced Gessler the system is, in fact, vulnerable to tracing ballots. As Gessler said in the statement his office sent out yesterday afternoon:

Following a recent example of credible evidence in Chaffee County, we proactively want to prevent this from happening again and safeguard against linking voters to their ballots. My aim is protecting Colorado elections, and this practice ends today.

Marks says that clerks or election workers could look at any ballot and figure out who cast it; she also suggests that a worker could start with someone's name and then look up his or her ballot -- something that she was able to prove with specific ballot examples. In Eagle, she says, the ballots are printed in sequential order, making them directly traceable to voters, because the sequence of printed barcodes matches up with the sequence of ballot stub numbers.

"It is not all right for the government to have this information in any form," says Marks. "[Once] it's in election officials' hands, it is very easy to get into many other people's hands."

The new rule, which went into effect immediately, prevents distinguishing numbers and barcodes -- a feature that appears isolated to the 44 Colorado counties that currently use what is called the Hart voting system, Gessler's office says.

Continue reading to learn about the concerns of Eagle County, which says that this change could hurt the election process.  

And while Marks is generally pleased with this decision, Gessler now faces opposition from at least one county clerk who argues that the unique serial numbers are an important part of the election process.

Eagle County Clerk and Recorder Teak Simonton says that she is concerned that, without the unique serial numbers, these counties might have trouble identifying when ballots are not scanning properly. She's also worried that there is no longer a good system in place to ensure that ballots aren't counted twice -- and if they were counted twice, it would be impossible to identify the error without recounting everything. Additionally, the barcodes helped protect against counterfeit ballots, she says.

"Removing the serial number takes away really important safeguards not only to the administration of the election, but also in the efficiency," she says.

Simonton notes that there have been no instances of county clerks actually trying to trace ballots back to voters. "The benefit of having the serial numbers on the ballots far outweighed any remote potential risk of someone being able to discern how someone voted," she adds.

What of Simonton's concerns? Says Gessler spokesman Rich Coolidge, "We are committed to working with them to find a solution."

Marks argues that larger counties in Colorado that don't have barcodes have been able to avoid those kinds of problems.

Despite the good news for Marks -- who had gone so far as to request a temporary restraining order in the case prior to yesterday's announcement -- she says the fight isn't over yet. Because Gessler wanted to put this rule in place immediately, Coolidge says, it only functions as a temporary, emergency policy change for the upcoming election. After November, he explains, Gessler will consider some kind of permanent change -- which would require a much more lengthy process involving public hearings.

And Marks vows to keep pushing until there is a permanent change.

"This is a good first step," she says. "It was inevitable that they were going to have to acknowledge this problem...before the November election."

More from our Politics archive: "Fight Back Colorado asks what House Speaker Frank McNulty should do next"

Follow Sam Levin on Twitter at @SamTLevin. E-mail the author at Sam.Levin@Westword.com.


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