Dangerous pitfalls in HB 1303 will no doubt continue to impact the November state and local elections

Author: - September 2, 2013 - Updated: September 2, 2013


On Thursday, Secretary of State Scott Gessler repealed the controversial email/internet voting rules that had been promulgated for the two recall elections for use by absentee voters.

The rules were the subject of much controversy and were challenged in the Libertarian Party’s lawsuit concerning a variety of recall election procedures. While the Denver District Court found some of the recall rules in violation of statutes, Judge McGahey seemed willing to allow the use of email ballots, “for this election.” He ordered that absentee ballots must be made available to everyone without requiring an “excuse.” That ruling was anticipated, as Colorado has been a “no-excuse” state for many years. The use of email rather than mail or hand delivery for absentee ballots would proliferate, and the Secretary quickly decided that this was unworkable and repealed the rule. We applaud his quick decision to provide more security to the recall election processes.

The Libertarians (and Citizen Center) had fought the introduction of email ballots for any use other than military overseas with no safer option (that is current law), and true medical emergencies. The original SOS rules issued August 16 allowed email transmission and return of all absentee ballots. After considerable public input, revised rules were issued to decrease the return of ballots by email, but still allow the email delivery of ballots to voters to be returned by U.S. Mail. The Libertarians argued that email delivery of ballots to voters creates a hosts of security and secrecy issues and would put the election at great risk—
1. Email ballots were to be marked with unique inventory control numbers that would of course result in a loss of secrecy as to the voter’s identity. (A voter printing a ballot at home would have no means to create detachable numbered stubs used to secure voting secrecy of paper ballots.) Such a loss of secrecy would likely subject the election to being invalidated afterward. (A recent recall election in Center Colorado was overturned in June because of identifying numbers on ballots.) Bottom line: Internet/email voting is not secure and years away from providing a legal and reasonable means of voting.

2. Email ballots (meant to be printed at home and returned by snail mail) could be easily fraudulently requested for hundreds of legitimate voters and voted without their knowledge. Election officials suggested that signature verification would prevent fraud. However, there are thousands of freshly signed recall and nominating petitions which are public records from which voter signatures can be scanned and then fraudulently imprinted on return ballot envelopes, after being sent to fake email addresses. This could all easily happen offshore where little enforcement would be possible.
3. Using the public record list of email ballot requestors, email ballots could be easily edited and forged for legitimate voters requesting them, then returned by the forger before the legitimate voter has the chance to vote the ballot. The legitimate voters ballot would then be cancelled out, as “first to arrive” is the ballot counted.

4. Returning voted ballots by email is being allowed now only in limited cases. Email ballots are subject to risks of loss, purposeful deletion, “editing,” rerouting, vote buying/selling, and a host of other problems, making the on-line return of ballots appropriate only in the most limited emergency situations, when a private, secure ballot is not possible. We hope that both county election officials will have strict controls on the use of such email ballots. 

We are pleased that Secretary Gessler took this action to eliminate a concern that became even more serious when, under the court’s ruling, such ballots could be issued on a widespread basis.

The Secretary also undertook efforts to attempt to curb the abuse of “self-confirming” voter ID in the form of “yellow cards,” that are nothing more than postcards informing voters of the polling locations and times. Pueblo Clerk “Bo” Ortiz planned to use these information post cards to allow anyone carrying one to vote without other ID or even a signature! (Never mind that many have been found in post office and public space trash cans for anyone to pick up and vote.) The Secretary and the Libertarians objected to the use of mere information post cards as valid ID and a substitute for a signature and were partially successful in at least forcing the post cards to accompany a signed affirmation of address. However, the court ruled that this “government document containing the voter’s name and address” was valid ID under the statute. This will allow a mail ballot fraud scheme in the next mail ballot election this fall, and will essentially allow fictitious voters to vote without ever having to show “real” ID, or show up in person, unless someone appeals this decision.

Those of us close to this recall election have seen firsthand the disastrous impacts the ill-considered HB13-1303. It is unfair to voters, candidates, parties, issue committees, and election officials. This rushed 120+ page complex bill was introduced by Senator Angela Giron (with major changes for recall elections) one month before the end of the session with an immediate effective date, and passed on strictly partisan lines, with the encouragement of the Colorado County Clerks Association. The bill further moved Colorado to “state-controlled” elections, away from “citizen-controlled” elections — a dangerous direction, in our view. The bill needed at least nine months of study and debate and careful evaluation to avoid the kinds of “unintended consequences” we have seen in this recall election. The Clerks and sponsors would not permit a full vetting of the flawed bill, as the ugly impacts would have been exposed. They insisted it was better to use the recalls and the November 2013 elections as guinea pigs for their bill than to allow lawmakers and the public time to digest and evaluate the impact on voters and election security. We see many other dangerous pitfalls in the bill that will no doubt continue to impact November state and local elections, and will demonstrate the need to dramatically reform this so called election “reform.”

Marilyn Marks

Citizen Center, Aspen