Unique identifying numbers, or bar codes, that can trace citizens to how they voted appear on ballots in dozens of counties in Colorado — a revelation that is not only troublesome but possibly illegal.

Ballots are not allowed to have “distinguishing marks,” according to state law.

A coalition of Colorado voters is suing Gessler (pdf) and a half dozen county clerks in a Denver federal court, contending the officials are presiding over unconstitutional elections. The litigation stems from a separate dispute over whether cast ballots should be made public so that elections can be verified by someone outside of government. When clerks argued ballots could not be seen by members of the public because it was theoretically possible to figure out how specific people voted in certain elections, the bar code problem became apparent.

“We didn’t think the clerks were serious. We thought they were pulling our leg, putting up a smokescreen,” said Aspen-based election activist Marilyn Marks. “We didn’t think it was true, but it is.”

Marks and a handful of other activists across the state soon learned that 46 counties in Colorado use Hart brand ballots that have bar codes affixed to them that are not torn off before they are tallied. Their lawsuit asks the court to prohibit the government from placing identifiers on ballots, or otherwise using mechanisms to track vote choices, both of which the suit says are already against the law.

“We’re suing Gessler because he hasn’t enforced the law and we think he should,” Marks said.

Messages left for Gessler and his spokesman were not immediately returned.

Marilyn Marks

“During the ballot verification and counting processes, it is beneficial for election officials to maintain procedures for tracking ballot batches,” the letter states. “These processes allow election officials and judges to quickly identify problems. But if an individual had access to the voted ballots and the tracking reports, then the person could track a ballot to a specific elector. Our office was made aware of the issues identified in your complaint during the past election cycle.”

Michael Hagihara, the state’s voter registration and elections manager who penned the letter, wrote that state officials are working to solve the problem by preventing the public from viewing identifiable ballots. The Colorado Court of Appeals, however, ruled that voted ballots are public records and should be available for public inspection. That case is being appealed to the Colorado Supreme Court.

“The problem is they think it is OK if the government knows how we vote. Government officials are the last people in the world who should know how we vote,” Marks said.

State officials and election clerks counter that they never trace votes or abuse their power.

The secretary of state is already the target of a potential recall. Gessler’s detractors believe his Republican partisanship is so overt that it is compromising the ethics of his office. Specifically, they complain of Gessler’s mandates to make voting more difficult. He has claimed that some of the measures he is taking are designed to ensure that non-citizens don’t vote in U.S. elections.

In addition to Gessler’s office, clerks in Boulder, Chaffee, Eagle, Jefferson, Larimer and Mesa counties are targets of the lawsuit that Marks and her group filed. A former owner and CEO of a trailer manufacturing firm, Marks lives in Aspen where she ran for mayor in 2009. She lost the election but learned a lot about voting in Colorado. She grew so troubled with what she discovered that she now has eight active lawsuits in the state demanding improved election quality and transparency.

(Image courtesy of Citizen Center)

Marilyn Marks

This year, for the first time, Aspen held an election using a new electronic voting system called Instant Runoff Voting. The intent was to put an end to costly and time-consuming runoff elections:

The council adopted IRV in response to a mandate by the majority of Aspen residents, who voted in November 2007 to eliminate runoff elections, which had required a June election if council candidates didn’t receive 45 percent plus one, and if the mayor didn’t get 50 percent, plus one of the vote in the May election.

In the new system, voters ranked candidates (in a style reminiscent of high-school crush lists) from favorite to least-favorite. An electronic system determined the winners.

But not everyone trusts the new system.

Last month, according to The Aspen Times, losing mayoral candidate Marilyn Marks filed a lawsuit against the city to force it to publicly release the ballot images from the election.

The city is fighting that lawsuit:

Earlier this month the city filed a motion to dismiss Marks’ lawsuit, arguing several points, including that people have a right to a secret ballot under the city’s home rule charter. [City attorney John] Worcester said some voters’ identities could be revealed because of unique or unintentional markings on the ballots in question.

Meanwhile, Councilman Jack Johnson made an open records request for any emails between Marks and the election commission, writes the Aspen Daily News.

Many of the e-mails between Marks and Election Commission member [Elizabeth] Milias include disparaging remarks about city staff and council, and there is a clear intent on Marks’ part to influence the agenda of the election commission. Certain e-mails, which don’t include [City Clerk Kathryn] Koch, show Milias and [Election Commission member Chris] Bryan discussing the agenda for an election commission meeting and plotting their strategies going forward.

The emails, says Johnson, show Marks lobbying a majority of the election commission and thus violate the open meetings rule— since they were done privately. Johnson has posted the emails here.

But Marks says she hasn’t done anything wrong:

“I think the election commission ought to be a body that a citizen can petition,” she said. “Not only am I denying [wrongdoing], I’m proud of how I did it … I would have advocated to any board.”

The city attorney’s office plans to provide City Council with an opinion about a possible open meetings law violation in an executive session today.

But once that’s decided, the city will have to decide what to do about its failure to follow its own charter in appointing the commission. Commission members were appointed in the wrong month—and never re-appointed in the correct month.

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