Federal judge says no constitutional right to secret ballot in Boulder case

By Tim Hoover
The Denver Post

Saying there is no fundamental right to a secret ballot, a federal judge Friday dismissed a lawsuit filed by elections integrity activists that challenged whether counties can print ballots with identifying numbers that critics say can be traced back to individual voters easily.

Denver U.S. District Judge Christine Arguello first denied a request by the Citizen Center, a group that advocates transparency in elections, to block counties temporarily from printing ballots with identifying bar codes.

Arguello then dismissed the entire case, filed against Secretary of State Scott Gessler and the clerks in Boulder, Chaffee and Eagle counties.

"The court made the right decision," Gessler said Friday afternoon. "The fact is, with our new rules and guidelines, voter secrecy is better protected now than ever before."

Marilyn Marks of Aspen, founder of the Citizen Center, said she was stunned by the outcome.

"We came in confident the court would agree with us," Marks said, "and to hear the court say that it is all right for the government and all of the election workers in Boulder County to have access to how we vote is absolutely shocking."

The lawsuit was aimed at preventing Boulder County in particular from using a system that printed a series of bar codes and numbers on ballots. The system was meant to be a work-around to comply with an emergency rule put in place by Gessler that counties could not use ballots with identifying markings.

Gessler issued the rule after activists complained ballots with identifying bar codes could be traced back to individual voters.

Arguello said activists had not shown the plaintiffs had suffered or would suffer any specific injury that could be remedied by a federal court. She said that even if a ballot could be traced back to a specific voter, it doesn't show that a person's voting rights were violated, saying there was no "fundamental right" to a secret vote in the U.S. Constitution.

Marks said county clerks, elections workers and judges and politically appointed members of local canvass boards could still look at how people voted and voters could still face intimidation.

She said her group is considering either appealing the federal ruling or filing the case in state district court.