Colorado Supreme Court hears arguments in Secret Ballot case: ruling will decide, do you have a right to a secret ballot?

The Colorado Supreme Court heard oral arguments last Tuesday morning in a case that could decide whether Coloradans have a constitutional right to a secret ballot. Although the particulars of the case (a March 13th Recall Election in Colorado for the Board of Trustees of the Town of Center, in Saguache County) involve only a small number of people in a single locale, the outcome (and implications for voter rights) could affect the very foundation of elections throughout the entire state of Colorado.

At issue: whether Colorado citizens have the right to a secret ballot, as guaranteed by the Colorado Constitution (Article VII, Section 8) or if election officials or other government employees can know how you voted – for “official purposes.”

Colorado’s Constitution guarantees secrecy in voting:

Text of Section 8:
Elections by Ballot or Voting Machine.

All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it. The election officers shall be sworn or affirmed not to inquire or disclose how any elector shall have voted. In all cases of contested election in which paper ballots are required to be used, the ballots cast may be counted and compared with the list of voters, and examined under such safeguards and regulations as may be provided by law. Nothing in this section, however, shall be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election, provided that secrecy in voting is preserved.  [Ed. emphasis added]

Election irregularities spark ‘Secret Ballot’ challenge

Election officials in the Town of Center (Saguache County) were alleged to have violated the secrecy of ballots cast in the March 2013 Center Colorado Recall Elections, exerting undue influence on voters and potentially affecting the outcome of the election.  Additionally, election officials and other government employees (including Town Housing Authority officials) and partisan supporters of the recall were alleged to have engaged in voter intimidation, including delivery and collection of “pre-filled” mail-in ballots and/or pressure to fill in mail ballots in the presence of officials or partisan activists.

During an official recount, representatives of the Colorado Secretary of State’s office noted numerous discrepancies (greater than the margin of victory) in signatures appearing on voted mail-in ballots differing from voter signatures on file in the state’s SCORE voter database.

After the recount certified the election results despite numerous documented discrepancies, Town of Center Trustee Maurice Jones (supported by election-integrity advocacy group Citizen Center) filed a challenge to contest the election results.  District Court Judge Martin Gonzales (12th Judicial District) agreed with plaintiffs that although some specific instances of voter intimidation were unproven, sufficient irregularities were documented to have affected the election outcome and set aside the vote, ordering new elections.

Secret ballot a fundamental right?  

Voter intimidation has a long and sordid (bipartisan) history in Colorado and nationally, reaching epidemic proportions in the “machine politics” era of the 1930’s and 1940’s (along with a brief period in the early 1920’s when the KKK dominated Colorado politics – including Mayor Ben Stapleton (D) and Governor Clarence Morley (R) and numerous judges, including a state supreme court justice).  More recently, both Presidents Nixon and Obama have notoriously used the IRS to target political opponents.

Historically and internationally, totalitarian regimes have plastered a veneer of respectability over their control of the populace by holding elections where “big brother” could know how the state’s subjects voted – and all but the boldest “toed the line” by voting the “correct” way.

Colorado voters passed a Constitutional amendment in 1946 (Article VII, Section 8) in response to voter intimidation and machine politics – stressing the importance of the secret ballot to allow citizens to vote their conscience free of outside influence or fear of reprisal (including by government officials).

Unfortunately, the sanctity of the secret ballot has been steadily eroded over time (most recently with the widespread advent of mail ballots), undermining the integrity of (and confidence in) elections in our state and nationally.

Remarkably, a number of Colorado’s county clerks (along with the Colorado Lawyers Committee and Colorado Common Cause, submitting amicus curiae) seem to claim that despite the clear constitutional language insisting that secrecy in voting is preserved, that secrecy in voting is not a fundamental right, and that public officials have the authority to determine how individuals cast their votes.

Do You Have a Constitutional Right to a Secret Ballot in Colorado?

The Colorado Supreme Court’s impending ruling in this case (Jones v. Samora, 13SA148) could very well determine if your rights under the Colorado Constitution (Article VII, Section 8) are upheld – or, once again, “interpreted” out of existence.

The implications of the court’s ruling in this case could affect the outcome of all future elections in Colorado.  The sanctity of the secret ballot is critical to voter confidence in the fairness of our elections – indeed, it’s critical to whether citizens have the confidence to participate in voting, period.

Do you have a right to a secret ballot?

We’ll have an answer in a few weeks…

Read more about the Colorado Secret Ballot case:

• Oral Arguments In re Jones v. Samora 13SA148 (audio recording)
• Jones v Samora Answer Brief
• Jones v Samora Affidavit of Marilyn R Marks
• Jones v Samora Index of Supporting Documents in Support
• Jones v Samora Amicus – Secretary of State
• Jones v Samora Amicus for Colorado Lawyers Committee
• Jones v Samora Petition for Review

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free –nor is it always easy to be a Citizen, not a subject. Ultimately, though – it’s worth the effort.