The Battleground 2012: Can Colorado Keep a (Ballot) Secret? After Citizen Center v. Gessler, It’s Not Required To Do So
November 6, 2012
Barcodes are a ubiquitous feature of modern life. They appear on everything from retail products and advertisements to patient forms at the doctor’s office. But perhaps one place a person might not expect to find a barcode is on an election ballot—especially when that barcode can be used to link an individual ballot with the voter who cast it. The notion seems at odds with our venerated tradition of the “secret” ballot. Indeed, that is what the plaintiffs argued in Citizen Center v. Gessler, a recent case before the United States District Court in Colorado.
On February 13, Citizen Center, a nonpartisan group of Colorado voters, filed a complaint challenging the constitutionality of election policies and procedures in six Colorado counties. Specifically, Citizen Center alleged that the defendant counties’ election ballots each contain a unique identifying mark that allows a voted ballot to be traced to its specific voter. Citizen Center further alleged that use of these ballots unconstitutionally infringes upon citizens’ fundamental right to vote, as well as their First and Fourteenth Amendment rights.
(Citizen Center has posted audio of a meeting between Chaffee County citizen Mark Arnolds and Chaffee County officials, in which Arnolds demonstrates how a barcoded ballot from that county can be traced to the voter who cast it.)
In 1964, the Supreme Court held in Reynolds v. Sims that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” In its complaint, Citizen Center contended that the defendant counties’ election procedures threaten exercise of this right by creating fear among voters that completed ballots can be traced to the individuals who cast them. According to the complaint, election procedures that make ballots personally identifiable force citizens to “choose between preserving the privacy of their personal electoral preferences…and exercising their fundamental right to cast a ballot expressing those preferences.” Some citizens, the plaintiffs asserted, simply will not vote out of fear that their ballots, and thus their personal electoral preferences, could be traced to them personally. As such, the defendant counties’ election procedures impose the type of restriction the Court envisioned in Reynolds and should be prohibited.
Together, the defendant counties denied Citizen Center’s allegations. They asserted that Citizen Center’s complaint did not present any evidence that the defendants have, will, or intend to trace plaintiffs’ votes in an election; it merely expressed vague fears about future implications of the challenged procedures. Moreover, the counties claimed, the allegations did not establish deprivation of any fundamental rights—although there is a fundamental right to vote, federal law does not guarantee the right to vote by secret ballot. The counties further contended that, even if the District Court did find a fundamental right to a secret ballot, it should not issue an injunction because Colorado state law provides an adequate remedy in tort for invasion of privacy.
U.S. District Court Judge Christine Arguello sided with the defendants. After pressing the plaintiffs for evidence that federal law guarantees the right to a secret ballot, Judge Arguello concluded no such right exists. She distinguished between the government denying citizens the right to vote and citizens themselves choosing not to vote due to concerns about ballot integrity, and found that the plaintiffs failed to show any “actual or imminent” harm resulting from use of barcoded ballots. Judge Arguello dismissed the case entirely for lack of standing on September 21.
Citizen Center should not rest its case just yet, though. As the Denver Post and others have noted, Colorado state law appears to protect the right to a secret ballot. Article VII, Section 8 of the Colorado State Constitution requires that “no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it” and that “secrecy in voting [be] preserved.” Additionally, as Citizen Center founder Marilyn Marks has observed, overseas military personnel who vote in Colorado elections via fax must waive their right to a secret ballot. This suggests that the right to a secret ballot does exist in Colorado, and raises the possibility that Citizen Center would prevail if it presented its case in state court.
Martha Tierney, a Denver attorney and co-chair of the Colorado Lawyers Committee’s Election Task Force, thinks the plaintiffs would be more successful in state court. In a email, she noted that this case raises an interesting question as to what qualifies as a “secret” ballot. Specifically, does the right to a “secret” ballot require that information about how a particular voter voted be concealed from everyone, even election officials responsible for counting the ballots and protecting against vote fraud? Ms. Tierney indicated that this might not be necessary, given that such officials take an oath of secrecy, or practical, given that such information is inevitably—if inadvertently—revealed in the course of effective election administration. “It strikes me that the government…has struck the right balance if it can protect the secrecy of the ballot from the general public,” she wrote.
Thus, even if the state court finds that Colorado state law protects the right to a secret ballot, the impact of its decision may depend on how one interprets the meaning of “secret.” And that’s something worth talking about.
Caitlin Cater is a second-year student at William & Mary Law School.
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