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Marilyn Marks
(Aspen Times file photo)
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Marilyn Marks is back, and she has the ballot selfie in focus

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Look who’s back in the game: Marilyn Marks, the thorn in the side of election officials whose protocols she scrutinizes and of the fellow Colorado Republicans she grills.

She’s been caring for her mother back east the past couple of years. Her mother recently passed.

She is a scrappy Southerner “praised in some circles, vilified in others,” the Aspen Times wrote when she moved from the Roaring Fork Valley to Denver in 2015.

She was the runner-up for mayor in 2009 but spotted so many weaknesses in the election system it became a mission for Marks. She founded an advocacy group, The Citizen Center, to take cases to court and she worked as a consultant to the state’s Libertarian Party.

When the state GOP was in turmoil in 2015, Marks was one of the bold-faced names on the roster asking questions.

Sometimes right, sometimes wrong, Marilyn Marks is never defeated.

She has a new target for her concern on how things are run in the Centennial State: the ballot selfie bill.

Though nobody enforces it, current law says you can’t tweet out a picture of yourself and your ballot saying, “Look, I wrote in Drew Carey for president!” or whatever. Hey, I didn’t tweet it out, OK?

It’s probably too late. House Bill 1014 to legalize the ballot selfie passed the state Senate Thursday, so it’s on its way to the governor’s desk to be signed into law. It had a pretty smooth ride, passing the House 31-4 and the Senate 62-2.

Marks considers that a fair fight.

“Not on his desk yet,” she said in an e-mail to me Sunday. “Takes 1-2 weeks to get there. And there is recall procedure before it goes. We are going to try that long shot and are starting a veto effort.”

Sunday night she e-mailed a letter to all 100 legislators. This is it. Is Marks on the mark, does she have a case?

Dear Colorado Lawmakers:

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. A simple, no-cost solution has been overlooked.

I have explained the background of these seven serious bill problems below in the body of this letter:

  1. Bill does not permit sharing “selfies” on social media as promised
  2. Facilitates vote-trading
  3. Coercion not effectively prevented
  4. Permits electioneering in the polling place
  5. Permits group voting
  6. Creates door-to-door ballot harvesting dangers
  7. Permits sending ballot copies to authority figures
  8. 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. Please consider the destructive impacts of this bill and the opportunity to recall the bill before it reaches Governor Hickenlooper’s desk.

There is a simple no-cost solution that addresses the citizens’ demand for “ballot selfies.” I have explained it at the end of this letter.

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.

  1. 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—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.

  1. Coercion not effectively prohibited. 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.
  1. 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.]
  1. 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.
  1. 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.
  1. 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.)
  1. 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.

No-cost solutionAlmost 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.

I am happy to discuss this further if you have questions or comments.

Thank you for your consideration.

Marilyn Mark

Rocky Mountain Foundation

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