Group Claims Colorado Can Snoop on Voters

DENVER (CN) - The Colorado Secretary of State and six county clerks have "unconstitutionally arrogated" to themselves an election system that can trace ballots "to the individual voters who cast those ballots," a watchdog group claims in Federal Court.

Citizen Center, a nonprofit, seeks declaratory judgment and an injunction against the Colorado Secretary of State and the clerks of Mesa, Larimer, Jefferson, Boulder, Chaffee and Eagle Counties.

Citizen Center, dedicated to transparency in government, was launched on Feb. 1. This is its first action as an advocacy group.

It claims that the clerks of the six defendant counties and Secretary of State Scott Gessler have "conceded directly admitted using the system at issue.

Two clerks, Sheila Reiner of Mesa County and Scott Doyle of Larimer County, have given PowerPoint presentations explaining how to locate particular ballots, using public figures such as county commissioners, state senators and state representatives, according to the complaint.

Secretary of State Gessler "has conceded directly to members of Citizen Center that his office is aware and has been aware since the 2010 election cycle that numerous county clerk and recorders in Colorado have adopted and implemented systems, practices, policies and procedures for the conduct of elections, including tracking reports, that allow voted ballots to be traced to specific voters," the complaint states. "Gessler stated on November 30, 2011, that his office is considering rules or statutory changes to restrict the public's access to reports that could be used to track a ballot to a specific voter. But Gessler and his office have no publicly announced plans to propose any rules or statutory changes that would prevent Colorado's county clerk and recorders from continuing to compile and maintain information, including tracking reports, that permits the government to trace voted ballots to individual voters." (Emphasis on complaint.)

Citizen Center says there is no need for such a system.

The 24-page complaint does not provide details about the vote-tracking system.

But Citizen Center's Robert McGuire told Courthouse News in an interview that there are at least three vote-counting procedures that can allow officials to match a submitted ballot to a particular voter.

"Some counties will put a serial number on the ballot," McGuire said, "and that's a practice subject to controversy around the country."

McGuire said Citizen Center's founder, Marilyn Marks of Aspen, has had open records requests denied by counties that pair voter names and serial numbers.

"Serial numbers have to be redacted" to release ballots to members of the public such as Marks, McGuire said. But members of the government can see the files in their entirety.

Another problem, McGuire said, is that votes are often processed in small batches by counties. And since voters get ballots tailored specifically to them - with their particular school district, sewer district and other distinctions - processing votes in small batches can allow for identification.

"They know which voter voted with which style [of ballot] and which voter was in each batch," McGuire said. "Then it's identifiable. ... Batching processes make it possible for them to figure this stuff out."

McGuire said some counties use batches as small as 50 ballots each.

Third, McGuire said, electronic voting machines can give officials access to a voter's choices. Direct recording electronic (DRE) voting machines, which some counties use, function by keycard, McGuire said. Keycards give voters access to their particular ballot, but also leave voters' information exposed.

"There's a timestamp on when you get that card," McGuire said. "It becomes pretty easy in places where not a lot of people vote; they can figure out who the individuals are who cast certain votes by DRE and they can see how those votes came out."

McGuire said that the last two possibilities will not affect every voter in an election. But he said they put every voter at risk.

"You never know if you're going to be one of those people," he said. "Almost anyone could be the only one in their batch with that ballot style. Pretty much anyone is exposed to this problem."

The secretary of state's office did not return a phone call seeking comment.

Citizen Center wants the vote-tracking processes enjoined as unconstitutional violations of due process and the right to vote by secret ballot.

The case has been assigned to U.S. District Judge Christine Arguello.

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