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District Court Judge upholds flawed election in ballot secrecy case

Colorado District Court Judge Stephen M. Munsinger (Chief Judge, 1st Judicial District including Jefferson and Gilpin counties; most recently retained in office in 2010) upheld the results of a flawed election for the West Metro Fire Protection District in a ruling issued today (24 July 2014), despite evidence showing conclusively that the secrecy of ballots cast by electors was breached on multiple occasions.

The lawsuit and election challenge, filed by the Colorado Union of Taxpayers (CUT) on June 2nd, alleged that the West Metro elections systemically violated the right to a secret ballot (guaranteed in Article VII, Section 8 of the Colorado Constitution) theoretically enjoyed by Colorado voters.

Evidence presented at trial and in multiple filings before the court substantiated the key elements of the plaintiff allegations:

  • voted ballots were viewed simultaneously with voter identifying information
  • simultaneous visibility of votes and voter information was systemic, not accidental
  • voted ballots were systemically additionally marked with voter identifying data
  • lack of ballot secrecy was publicly known, potentially dissuading voter participation

Plaintiffs thus advanced the claim that the election was therefore invalid and moved to void the results:

The District planned and utilized a ballot processing procedure that did not protect the right to a secret ballot. The case law in Colorado is clear that because the Election violated the right to a secret ballot, the proper remedy is for the Court to void the election results ab initio. (Plaintiffs Closing Argument at 4)

The claim was further bolstered by expert testimony from Deputy Secretary of State Suzanne Staiert:

Based on her review of the information, Ms. Staiert opined that because the judges were trained in a certain way that a systemic violation of the secret ballot did occur because “every single ballot had a privacy violation as it was separated.” (Staiert Trial Testimony, 7/9/14). [Emphasis added]

Additionally, the District's marking of ballots identifying votes/voters was noted as a particularly egregious and clear violation of election rules and constitutional language guaranteeing ballot secrecy:

Ms. Staiert testified that in her experience she has never encountered the use of sticky notes as used by the District in the Election to identify voters’ ballots and considered it a bad practice. She further testified that the District’s purpose and use of sticky notes in the Election “are inconsistent with our rules, they are inconsistent with the Constitution; it is a marking on the ballot that identifies the voter.” (Staiert Trial Testimony, 7/9/14).

Nonetheless, despite documentation and testimony by multiple witnesses substantiating breaches of ballot secrecy, Judge Munsinger upheld the election on the pretext that only "affirmative discovery" of electors' votes could count as a constitutional violation:

To show a constitutional violation of this provision, Plaintiffs must show that election judges, in fact, affirmatively discovered electors’ votes. Jones v. Samora, 318 P.3d 462 (Colo. 2014). Voiding an entire election, ab initio, is appropriate only where it can be shown that the entire election was conducted without secret ballots. Id., at 471 (citing Taylor v. Pile, 391 P.2d 670 (Colo. 1964)). Finding that an entire election was conducted without secret ballots requires a showing that the ballots were not secret at the time electors voted, or that electors were intimidated or were otherwise not free to vote as they wished. Id. (Judgment at 3)

The problem with Judge Munsinger's apparent invention of an "affirmative discovery" standard is that, absent voluntary confession of wrongdoing (or, presumably, waterboarding) it is impossible to prove. Essentially, adopting such a standard for ballot secrecy effectively nullifies applicable election rules, statute, and constitutional language guaranteeing every voter the right to cast a secret ballot.

Quo Vadis?

Given that Judge Munsinger's ruling appears to be in conflict not only with the evidence and testimony presented, but also with relevant case law precedent, it is likely that the case will be appealed to the next higher court.

It may still be some time before the final results of the West Metro election are known (or, indeed, actually final).

Read more about the West Metro Ballot Secrecy case: