Carroll: The sky didn't fall after all
By Vincent Carroll
Denver Post Columnist
Posted: 09/04/2011 01:00:00 AM MDT
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.
Secretary of State Scott Gessler, who won the legal fight to recount the ballots with citizen assistance, selected volunteers to tabulate the results under his staff's direction. He later celebrated the process, understandably, as providing "unprecedented access to the ballots."
True, some volunteers have complained that the probe wasn't nearly comprehensive enough — that it didn't count the mail ballots by precinct, for example. And while the critics may be right, they can console themselves with the knowledge that this was only one of many battles in the campaign to ensure that elections are transparent and verifiable, as well as run by officials accountable to the public.
Too many clerks seem to believe that they should be both the first and last line of defense of election integrity. No one must look over their shoulder or second-guess procedures — or at least no one outside the official club. Hence the clerks' repeated attempts to keep voted ballots under wraps and their strained explanations for why voter identity could be breached if they do not.
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.
E-mail Vincent Carroll at firstname.lastname@example.org.
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