OPINION: Colorado’s Dangerous New Election Law, Part One

Dear Colorado Voter:

Your immediate action is needed to defeat the most harmful election law in Colorado’s history. HB17-1014 — passed by the General Assembly on March 4 — strips away 125-year-old protections that secret ballots provide, to voters and to the integrity of the election process — protections that all other states and modern democratic societies demand.

The bill is now set to go to the Governor’s desk. Please immediately contact your Colorado State Senator and House Representative to request that they not send the bill to the Governor’s desk. You can find your state senator’s and representative’s phone number and email at this link.

Please also write to Governor Hickenlooper to ask him to veto this bill (HB17-1014) via his staff member Jefferey Riester Jefferey.Riester@state.co.us

The bill — with problems detailed below — is based on the 18th and 19th century standard that voters should be able to waive their right to a secret ballot and prove how they voted to anyone — their boss, their commanding officer, the sheriff, the tax assessor, the mayor, their pastor, their union boss, their landlord, etc.

HB17-1014 even permits ballot voting parties with group voting at churches, union meetings, bars, clubs, employee meetings, colleges, etc. where voters can show their voted ballots to their associates to encourage the group to support certain candidates or issues. Partisan watchers will be permitted to be stationed in the polling place where voters may bring their voted ballot to prove to the party or campaign that they voted “the right way.”

Obviously, permitting voters to prove how they voted to those in a position to distribute favors leads to the corruption of the Boss Tweed era. Colorado lawmakers have adopted that election scheme in their desire to promote unrestricted “Free Speech” in elections.

Major problems with the misnamed “ballot selfie” bill (HB17-1014) passed last week both undercut the intent of the bill and invite corruption of Colorado’s elections.

Meanwhile, a simple, no-cost solution has been overlooked.

I will explain the background of these seven serious bill problems below in the body of this article:

  • Bill does not permit sharing “selfies” on social media as promised
  • Facilitates vote-trading
  • Coercion not effectively prevented
  • Permits electioneering in the polling place
  • Permits group voting
  • Creates door-to-door ballot harvesting dangers
  • Permits sending ballot copies to authority figures
  • Conflicts with state constitution and existing law

No other state or modern democratic country permits the election activities that this bill permits. Most of these activities were banned in the late 1800’s as part of this nation’s election reform. Colorado lawmakers should fully deliberate whether citizens really support this broad rollback of voter protections to Boss Tweed times. The 125+ year old concepts of secret ballot rights are based on both a right and a duty to maintain a secret, anonymous ballot. The duty is mandatory to protect elections from corruption and voters from undue influence. The abiding concept for 125 years had been that a voter should never be able to prove how they voted. To do so invites election corruption. HB1014 fails because it retains the right, but not the duty of a secret ballot — the fundamental principle of free and fair elections. Our elections must retain both the unshakable right and duty to stop a perversion of the democratic process.

There is a simple no-cost solution that addresses the citizens’ demand for “ballot selfies.”

I have listed seven major flaws in the bill, although there are numerous others.

1. Bill does not permit sharing selfies on social media as promised.
Sponsors misled the General Assembly and the press in claiming that this bill grants the voter the ability to legally post a picture of his/her official voted ballot on Facebook, Instagram, Twitter, etc. The existing law provisions (not amended by this bill) still prohibit any person from disclosing “to any other person the name of any candidate for whom a voter has voted.” (CRS 1-13-712(3)) While the voter may attempt to post a voted ballot on social media, this longstanding provision would technically prohibit Twitter, Facebook, etc. from publishing (disclosing) that ballot image. If the social media site published the voter’s posting despite the law, it still would be illegal for other users to share or “retweet” the image, making the situation even more confusing.

In summary, the bill does not live up to its claims — to permit voters and social media users to freely share voted ballot images.

We opponents are pleased with the remaining restrictions because sharing voted ballots (or posting ballot selfies) is clearly a danger to the integrity of the election, by encouraging voter intimidation and trading votes for favors. However, voters, proponents and supporters of the bill should not be fooled into believing that the bill is what the sponsors claimed or that sharing “selfies” is now protected by law.

2. Potential national impact — facilitating vote-trading.
The Secretary of State is rightly concerned about Colorado becoming the epicenter for vote-trading because voters can show their ballots or copies to anyone anywhere. Colorado has no law preventing vote-trading. The fact that secret ballot requirements prevent disclosing ballots in most states caused vote trading to be in limited use because of reliance on the “honor system.” With this new law, the vote-traders will not have to rely on the honor system in CO. Vote trading is just beginning to attract attention in the press. Obviously the most wide-scale national impact would be trading votes for electoral college impact. But even Colorado Congressional election vote-trading would have national impact.

Here are some examples:

  • Democratic Party voters in red CD-4 could agree to vote for the R or independent candidate in exchange for someone voting for the D candidate in very competitive CD-6.
  • Trades can be made up and down the ballot based on value of the vote. Votes in swing district CD-6 are more valuable than votes from solidly blue Boulder County. So, it could take 3 votes for R’s in various races on the Boulder ballot to get 1 D vote in CD-6. Ballot questions could be traded as well — for example, Voter A agrees to vote for the pro-life amendment, if Voter B will vote for a marijuana tax.
  • Of course trades can occur down to city council wards.

A robust marketplace would likely develop for trading votes in Colorado as the traders would be able to prove the trades, not just rely on the honor system. The trade could be verified in numerous ways in Colorado — because voter can show the voted ballot to anyone via any means who can witness or notarize the accuracy of the voted ballot. There is nothing in the law to prevent this. It would be very hard to police when voted ballots can be displayed. In my view, this is institutionalized voter fraud.

It should be noted that the original bill as introduced included prohibitions on vote trading, but sponsors removed those prohibitions in amendments.

Read Part Two…


Marilyn Marks

Marilyn Marks is an election integrity activist focused on election fairness, transparency and voter privacy.