Algorithm developed to trace ballots

The Colorado Statesman

For nearly two years ballot secrecy advocates have been filing complaints with the secretary of state’s office and the offices of county clerks and recorders raising concerns about ballots being traced to individual voters. But their fears appeared to fall on deaf ears.

The tide has apparently turned for these voters after a Chaffee County citizen, Mark Arnold, developed a relatively simple algorithm that allowed him to trace 10 ballots from the June Chaffee County Republican primary election to their individual voters. All that was needed was a ballot stub and ballot envelope. Using a data matrix on the stub, Arnold was able to produce a number that could be traced back to individual mail-in ballots, thereby revealing the identities of voters connected to those ballots.

The revelation flies in the face of statements by county clerks and Secretary of State Scott Gessler who have maintained all along that there is no immediate reason to be concerned that ballots can be traced to individual voters in Colorado.

Secretary of State Scott Gessler

Just in February, Gessler told The Colorado Statesman, “I don’t think anyone’s anonymity has ever been compromised…” His office said again in May that the secretary continued to believe that ballot secrecy was not an issue.

But the new evidence is both enlightening and problematic, as the Colorado Constitution clearly states that, “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.”

Arnold’s experiment has caused a frenzy of response as clerks scramble to adhere with Colorado law, including an emergency rule issued by Gessler’s office late Monday to prevent counties from printing ballots with unique numbers and barcodes, which may link voters to their ballots.

“Following a recent example of credible evidence in Chaffee County, we proactively want to prevent this from happening again and safeguard against linking voters to their ballots,” Gessler said in a statement. “My aim is protecting Colorado elections and this practice ends today.”

Earlier on Monday, Gessler told The Colorado Statesman, “We’ve been very intently focused on this issue and we take it very, very seriously.”

A pattern of neglect?

But the citizens involved in the controversy since its inception say they have been pleading with Gessler’s office and county clerks for nearly two years to take them seriously, having demonstrated through sworn testimonies and other ballot secrecy conversations in Eagle and Boulder counties that clerks were repeatedly violating the state constitution by not ensuring that ballots remain anonymous.

Marilyn Marks, a ballot secrecy advocate and founder of the Aspen-based Citizen Center, is one of the concerned voters who have been raising the issue for nearly two years. It started after her unsuccessful run for Aspen mayor in 2009. Following the election, she requested that Aspen hand over images of voted ballots. Her request was denied and she sued, winning on the appellate level, with the court ruling last fall that images of the voted ballots should be open for public inspection.

The case was appealed to the Colorado Supreme Court. The high court on June 28 reversed its original decision, deferring to the appellate court and declining to take the case. As a result, it stands in Colorado that voted ballots are public records open to inspection.

But questions still remain over ballot secrecy. In denying Marks’ request for images of voted ballots, Aspen said ballot anonymity could not be guaranteed.

In an e-mail to Marks dated Sept. 29, 2010, obtained by The Statesman, Eagle County Clerk and Recorder Teak Simonton said she could not produce the ballots to Marks stating, “In response to your question… the serial number issue is only one issue I have with allowing the public to view voted ballots. There are many reasons why this is ill advised primarily related to protecting every voter’s right to absolute privacy of their votes.”

Simonton then directed further questions regarding ballot secrecy to the secretary of state’s office.

In October 2011, Chaffee County Clerk and Recorder Joyce Reno took Marks to Chaffee County District Court after Marks made a similar request for images of voted ballots in that county.

In sworn written testimony dated Oct. 13, 2011, Reno said, through her county attorney, that she could not produce the ballots because, “Depending on which ballot is pulled, even if a voted ballot has no clearly identifiable marks, it is possible to associate a particular ballot with a single voter, through reference to ballot inventory reports, vote center statistics, party affiliation, maps, and/or knowledge of the area. This would allow a determination of how a specific person voted.”

“Ms. Reno’s opinion is that citizens would be fearful that their ballots may somehow be identifiable and because of the risk that their ballots would be disclosed, would influence citizens not to exercise their constitutional right,” the sworn written statement continues.

Given the apparent ability to trace ballots that are by law supposed to be anonymous, Marks filed a separate pending federal case in U.S. District Court against the clerks of Mesa, Larimer, Jefferson, Boulder, Chaffee and Eagle counties, alleging that the clerks are not guaranteeing ballot secrecy.

In sworn written testimony dated July 25, 2012, Reno, through her county attorney, again alludes to knowing that prior ballots could be traced to individual voters. She states as her reason for denying producing ballots before 2012, “The ballots utilized in elections prior to 2012 are not the same ballots that were used in the June 2012 primary election or that will be used in the November 2012 general election, and as a result any issues with traceability of ballots from before 2012 can have no possible bearing…”

As part of the federal case, Marks and her attorney on Friday filed a motion for a temporary restraining order asking the court to prohibit Gessler’s office and county clerks in Chaffee, Boulder and Eagle counties from printing traceable, voter-identifying barcodes and numbers on voters’ November ballots. The defendants had until Aug. 24 to respond.

“Every race on the ballot this November, from dog catcher all the way up to president, will be in jeopardy of being thrown out if this illegal practice of printing unique, traceable numbers and barcodes on Colorado ballots isn’t stopped,” said Marks.

Not proactive enough?

By her own admission, Reno raised concerns about ballot secrecy beginning back in 2011, yet her office took no significant steps since then to address the concerns. She said that there was no real interest until Arnold was able to create an algorithm to trace the ballots in Chaffee County.

“Based on the information that we had received and the information that we had in front of us… there was no need to feel that they were traceable,” she told The Statesman on Wednesday.

“We’ve taken steps, but we’ve always checked our processes to make sure what we’ve been doing was what statute told us to do and what the secretary of state’s laws and rules have told us to do…” added Reno. “Every precaution that we had to do we’ve always done.”

“We go by what our vendors have always told us, and based on that information there was no reason for us to feel that our ballots were traceable,” she continued.

But Arnold cannot understand why it took his own investigation to finally get officials to pay attention and take action. He jokes that he is just a “dumb chimney sweep,” referring to his profession, and he is flabbergasted that while in his spare time he was able to connect ballots to voters, the county clerks themselves never attempted to vet the process.

“What sucks is that Marilyn Marks and Citizen Center have been working on this for months and months and months, and yet it takes one dumb chimney sweep… to figure it out,” decried Arnold. “There’s a problem here.”

Marks feels vindicated after nearly two years of trying to get officials to pay attention.

“The evidence says that she did know,” Marks said of Reno, but also points to clerks in other counties. “When you ask me, ‘Should she have been more proactive?’ No. She was plenty proactive. She knew. She checked it out. She knew the claims were correct. She just thought she could fool us.”

Peter@coloradostatesman.com