DENVER–Colorado Secretary of State Scott Gessler issued an emergency order Monday instructing county clerks to stop using a ballot-identification system that compromises the secret ballot.
“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,” Gessler said in a statement. “My aim is protecting Colorado elections and this practice ends today.”
Gessler’s order comes in the middle of a legal challenge filed by the Citizen Center, a non-profit watchdog group based in Aspen. The group filed Thursday a motion seeking a temporary restraining order to stop clerks in six counties from printing ballots for the November election with unique numbers and barcodes that can be traced back to the voters who cast them.
County clerks have argued that no voter’s ballot had ever been traced in such a way, but the Citizen Center produced signed declarations from three individuals who said they were able to look up voting results from the June 2012 primary election using ballot numbers and barcodes, an iPhone app, and publicly available software.
Mark Arnold, executive vice-president of the Chaffee County Republican Party, said in a sworn declaration that it took him about a minute to locate his ballot image from the county’s file of ballot images once he had the barcode.
“As a small business owner, I am uncomfortable with my customers and vendors potentially having access to how I choose to vote in certain contests, particularly in Republican primary elections or local special district elections,” said Arnold. “I believe that Chaffee County’s ability to connect a voter to his voted ballot will have a chilling effect on the Chaffee County 2012 voter turnout and the ability for some voters to vote their conscience, for fear of upsetting some government officials, candidates, friends, employers or party officials.”
The Citizen Center filed a lawsuit in February naming Gessler and clerks in six Colorado counties, including Chaffee, that now use the Hart voting system, which places unique numbers and barcodes on ballots.
With county clerks scheduled to print ballots for the Nov. 6 election in seven weeks, however, the group decided there wasn’t enough time to wait for the outcome of its original lawsuit.
“They [the Secretary of State's office] did the right thing with respect to these Hart counties,” said Robert McGuire, attorney for the Citizen Center. “I’m glad they took the action they did. I’m just sorry it took six months.”
McGuire said the larger issue is that the results of the November election in Colorado could be voided if the ballots were found to be insufficiently secret, noting that “the implications are huge for this presidential election.”
“The Colorado Supreme Court has ruled in no uncertain terms that an election in which all ballots are traceable back to their voters is a void election. No wiggle room, no exceptions,” said McGuire in a statement. “That means every race on the ballot this November, from dog catcher all the way up to president, will be in jeopardy of being thrown out if this illegal practice of printing unique, traceable numbers and barcodes on Colorado ballots isn’t stopped.”
He said the Hart voting system was adopted by some county clerks in 2005 under Secretary of State Gigi Dennis. The bar-code system is popular with some clerks because it helps vote-counters avoid double-counting ballots.
In a response to the lawsuit, county attorneys argued that the Colorado Constitution doesn’t call for elections to be voided if staffers accidentally link a voter with a ballot.
“[N]o constitutional or statutory provision bars election officials from inadvertently discovering how an individual voted,” said attorneys in a motion filed June 4. “In fact, Article VII, Section 8 of the Colorado Constitution specifically contemplates that election officials during the course of an election may learn how a particular voter voted and places a duty on them not to disclose that information.”
Gessler and the county clerks have until Friday to respond to the request for a temporary injunction, although Monday’s order may make their response unnecessary. The clerks named in the lawsuit represent Chaffee, Mesa, Larimer, Jefferson, Boulder and Eagle counties.