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

Read Part One

[EDITOR’S NOTE: Ms. Marks discussed two of the problems she sees with HB17-1014 — passed by the General Assembly on March 4 — which, in her opinion, will strip away 125-year-old protections that secret ballots provide, to voters and to the integrity of the election process.  Today in Part Two, she continues to outline her key concerns with the so-called (but misnamed) “ballot selfie” bill.]

3. Coercion not effectively prohibited by HB17-1014.
The voter protections against coercion to disclose the ballot are weak. The law only prohibits “inducing” a voter to show his ballot, without defining “induce” beyond the Webster’s meaning of “inspire, motivate, convince, invite, etc.” The provision is so vague as to make it unenforceable. The voter intimidation statute does not seem to directly apply to creating undue pressure to disclose a voter’s ballot. Voters are simply not adequately protected from pressure to disclose how they voted.

4. Electioneering in the polling place.
This bill permits voters to enter a polling place and show watchers and other voters their voted ballots. Voters can show campaign, candidate, and issue committees’ watchers their voted ballots before they cast them, proving that they voted “right.” Imagine the abuse and social pressure voters will experience as members of unions, political parties, churches, or clubs or whose employers have “suggested” how they should vote, and have stationed appointed official watchers in the polling place to inspect ballots of the member/employee/constituents who are “willing” to prove their loyalty. Proponents argue that voters are not required to show their ballots—it is their choice. That is not realistic when authority figures are standing by the ballot box expecting to see voters’ voted ballots. Imagine the union boss standing by the ballot box as a watcher. Of course, his members are going to feel that they must show their ballots and loyal votes. Imagine the uniformed fireman watcher there looking for votes for the fire district tax increase. [In theory, each clerk can control the activities in the polling place, but this discretionary determination will not survive legal scrutiny. Different standards for electioneering and ballot disclosure cannot be applied. And in practice, the clerks are not going to tell local power-brokers that they are prohibited from the electioneering that the state law permits.]

5. Group voting.
The new bill permits group voting. In our mail ballot state, it is easy for an employer or union to host a voting party. “Everyone bring your ballot Friday, and we will go to happy hour and vote our choices.” Imagine how “souls to the polls” becomes “ballots to the pews” at a Sunday morning group voting meeting where everyone brings their mail ballot. Imagine the pressure that could be put on public housing residents by their manager holding a voting meeting. Political parties can have voting parties during their precinct captains’ meetings, to assure that everyone votes as they should. Which precinct captain is going to fail to follow the crowd and show his ballot? Teachers can vote together to votes on the school board candidates, which school management or the union is in the room expecting to inspect their ballots.

6. Door-to-door harvesting ballot reviews.
Colorado permits door-to-door mail ballot harvesting now, but until now, the voter was not to disclose the marked ballot to anyone. Now, harvesters can “help” the voter by “checking the ballot for accuracy and clarity.” Imagine the pressure many will feel to show the union, employer, church, or political party “harvester” their ballot choices. Organizations will announce that they will send harvesters around to collect the ballots, discouraging voters from mailing the ballots.

7. Emailing copies of the voted ballot to authority figures.
This bill permits voters to prove how they voted to their employer, commanding officer, union, church leaders, family, political party, candidate, sheriff, city council, etc. by emailing a copy of the marked ballot to them. Although the authority figure should not request such disclosure, the subtle pressure will certainly happen. The voted ballots become open records, and after the election, the receiving party can verify that there is a counted ballot that appears to be the one the voter claimed to cast. (This eliminates the voter sending a picture that does not match his official cast ballot.)

8. Conflicts with other election statutes and state constitutional provisions.
Colorado’s election law is built on the concept of a secret, anonymous ballot as a mandatory key principle. HB1014 flips that modern democratic concept on its head. The bill makes such fundamental philosophical changes in the way Colorado elections are conducted that many other sections of the election code must be amended, and the conflicts with the state constitution addressed. For example, election judges are not to see, inquire or disclose how individual voters vote. The state constitution requires that they take an oath not to do so. When voters will be displaying their ballots in the polling place and presenting their proof of voting “right” to their favorite partisan judges, such an oath is unworkable.

The same is true for appointed watchers who are not to be able to see how individuals vote. Their natural role will become to receive what willing voters will prove to the watchers’ campaigns as to how they voted. If all other members of the public are free to know and discuss how a voter voted, the judges and watchers should not be held to a different standard of confidentiality, and the avoidance of even looking at what is put in front of them.

Electioneering statutes must be modified to permit the polling place electioneering provided in this bill. CORA laws that prohibit the disclosure of identifiable ballots must be amended to acknowledge that many ballots will be identifiable under this bill, and to make them available to the public after the election. Identifying one’s ballot should not reduce transparency of verification of the election.

The No-Cost Solution.
Almost all election officials publish copies of sample ballots on their websites. The old law can be amended simply to have the clerk clearly mark the website ballot as a sample. The voter may then download the unofficial ballot to share, post, email, etc. … which would not prove how he voted, but would allow his full political expression of his stated voting choice. Sponsors rejected this solution, insisting that voters should be able to prove how they vote. This should be reconsidered. No other changes to the existing law would be required. The bill can be recalled, and remedied with a brief substitute bill to provide sample ballots online.

 

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

Marilyn Marks

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