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Mesa, Jeffco clerks seek court order to withhold CORA-requested ballots

Posted: Thursday, Sep 8th, 2011

DENVER — In an attempt to obtain a court ruling differing from Saguache District Judge Martin Gonzales’ recent decision that ballots are public records, two Colorado county clerks have simultaneously requested court orders to withhold voted ballots from public inspection.

Mesa County Clerk Sheila Reiner and Jefferson County Clerk Pamela Anderson filed almost identical documents seeking the decisions yesterday in Grand Junction and Golden. Both clerks received Colorado Open Record Act (CORA) requests from Aspen election integrity advocate Marilyn Marks last month and both refused to supply the documents Marks requested.

Marks sought three specific types of voting records: the record of how each anonymous electronic ballot was voted, primarily, but also computer audits and system logs. Both clerks claim to have destroyed the computer audits and system logs, despite the fact that federal and state law requires a two-year retention period.

Denver attorney Robert McGuire, acting for Marks, filed suit against both clerks late Wednesday night for the right to review the CORA-requested documents rather than simply responding to the requests for court decisions.

“I chose to take a more active stance in the matter and litigate the issue [because] it is too important to leave to a more passive process,” Marks commented on the suit.

Election activists react

Nationally known election integrity activist and writer Bev Harris, founder of Black Box Voting Inc., weighed in on Marks’ suit Thursday.

“Mesa County and Jefferson County need new county clerks,” Harris commented by e-mail. “Current county clerks are violating citizen rights and costing taxpayers legal fees, as they have now decided to block right to see ballots - despite the recent court order to the contrary!”

Harris helped popularize the term Black Box Voting while authoring a book of that title. According to her Wikipedia entry, Harris’ original investigative work has been featured in the New York Times, Washington Post, Time Magazine, CNN, ABC, MSNBC, CBS, Fox News, and NBC, as well as by the Associated Press, NPR, and many other mainstream news outlets.

In her e-mail to Marks denying the request for electronic ballots, Mesa County Clerk Reiner wrote: “The EL155 is the iVotronic ballot log. This file contains images of ballots, listed by precinct, and shows how someone voted. This log is also printed for the extensive auditing process with the major political parties.”

She claims that the “law is clear and the ballots must be kept secret.”

As Marks points outs, this means that only an elite cadre of clerks and politicos would be able to examine votes, not the public.

She traces Reiner’s and Anderson’s stance to the policies of the Colorado County Clerk’s Association (CCCA), described in a recent post by Harris on her site as: “A quasi-governmental organization...paid for with taxpayer funds, but claiming it is not subject to open records laws or sunshine requirements for its meetings. [CCCA] has aggressively fought the public over the right to examine ballots, (see http://www.bbvforums.org/forums/messages/8/81647.html).

“The court decision in the Saguache County case is a crucial step to enforce public rights and controls. Examining ballots after they have been taken out of public view does not suffice to validate the count, because the chain of custody is missing. The same government workers who have access to altering vote counts control the chain of custody.”

The files the two clerks seek to withhold are the same files produced by the Electronic Systems & Software (ES&S) voting system, which have been used in other states to test the reliability of the touch screen voting system. In fact, the very record types that both county clerks claim to be “secret” have been posted to the web by South Carolina election activists (http://www.scvotinginfo.com ) and the South Carolina state auditor: (http://www.scvotes.org/2011/08/03/2010_general_election_audit_files.) The South Carolina legislature has now taken up the subject of the questionable reliability of these voting systems based on their findings in reviewing this election data.

“The public should be asking what is wrong in Colorado that election files available in other states for election quality reviews and academic work cannot be accessed here,” Marks said in an e-mail Thursday. “Public access to election records is a fundamental requirement of democracy. Citizens and the press must be able to verify their elections in order to fully exercise their rights to self-governance.”

Mary Eberle, a member of Coloradans for Voting Integrity, e-mailed Thursday: “It is unfortunate that expensive litigation of the type filed against Jefferson and Mesa counties is necessary to gain citizen access to the most basic of public records - the records of the citizens’ will at the ballot box. With the success we expect from this latest legal effort, all other Colorado counties will enjoy the same level of election transparency the citizens of Saguache are beginning to experience.”

Eberle participated as an observer in the citizens’ review of Saguache 2010 votes last week to try and verify the troubled election in Saguache. While numerous problems and tabulation errors were exposed, the process made all the ballots available to anyone to see and count.

A review of all the ballots found none to be “personally identifiable,” counting judges and observers at the review agreed.

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