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Rocky Mountain Foundation

7035 Marching Duck Drive E504


Charlotte, NC 28210
Marilyn@AspenOffice.com

March 14, 2017

Re: Request for veto of HB17-1401

Dear Governor Hickenlooper:

I am writing to respectfully request your veto of HB17-1014. The bill impacts all citizens of
Colorado by undermining fundamental principles of free and fair elections. It overturns
voter protections guaranteed by the mandatory secret ballot laws since the Territory days.
A fundamental principle of the secret ballot scheme in modern democracies includes the
assurance that the voter cannot prove how he/she voted and that election officials should
not be able to connect the ballot to the voter. Colorados Constitution as amended in 1947 to
ensure that ballots cannot be connected to voters provides that no ballots shall be marked
in any way whereby the ballot can be identified as the ballot of the person casting it. (Article
VII, Section 8) The intent is clear that voters must not be able to prove their voted choices.

Legalizing corruption in Colorado elections


A serious-minded consideration of this bill brings us to the central issue presented by the
bill of whether long-standing anti-corruption controls should be lifted when the corrupting
results are clearly predictable. Elections are universally subject to temptations and
attempts at corruption and trading votes for tangible or intangible value. While vote buying
and selling for monetary consideration will remain illegal, trading votes for favorable
treatment will clearly become the norm, as supplicants will naturally voluntarily bring
proof of their vote when seeking jobs, permits, favors, or officials help. The result takes
little speculation, and only a brief look at the pre-reform election history to understand
what will happen in Colorado if this bill becomes law. Trading favorable treatment for votes
is just one example of the corruption that will be permitted when proof of ones vote is
permitted. Corruption will also quickly enter the system through on-line vote-trading
websites and permitted group voting.

In passing HB17-1014, lawmakers have abdicated their sworn duty under the state
constitution to pass laws to secure the purity of elections, and guard against abuses of the
elective franchise. The activities legalized by this bill are the antithesis of principles
embedded in the state constitution.

Your veto is required to ensure that election corruption is not legitimized.

Proving votes is anti-democratic and almost universally prohibited


HB17-1014 destroys the mandatory secret ballot protections guaranteed by the state
constitution. The fundamental theme of HB17-1014 is that voters may freely disclose their
voted ballots to anyone at any time and that voters may prove how they voted. Therefore,
voters will be able to prove to their bosses, their unions, their school boards, their
professors, their tax assessor, their minister, their county chair, etc. whether they voted as
the authority figure wished. Voters will be able to locate campaign-appointed watchers in
the polling place and prove their loyal vote before casting the ballot. Voters would be
permitted to campaign for their chosen candidates by showing their voted ballot around the
polling place. (The bills granting of discretionary authority to the clerks to craft restrictions
will cause inconsistent standards and not survive legal challenge.) Door-to-door ballot
harvesters could review ballots of loyal willing supporters/votes. It will merely become the
expectation, but not the requirement, that voters show their loyalty and unity by showing
their ballots.

Voters have the ability today, prior to HB17-1014, to download or photograph a sample
ballot from the election officials website, mark it, and freely display their political choices---
without displaying the actual vote on the official ballot. HB17-1014 dangerously changes
the entire election scheme under the frivolous demands of voters to freely express their
political choices by proving their votes. There is no doubt that corruption will quickly
follow.

Mandatory secret ballots are the long-time standard in all 50 states and all modern
democracies. Even in emerging democracies, HB1014s concept would be rejected. Imagine
the international uproar if the standard for elections in Myanmar was that voters could
voluntarily show their ballots to the junta.

First Amendment considerations


Proponents of the bill claim that free political speech of displaying official ballots should
trump all other considerations in the principles of election structure. Yet, since the days of
the Colorado Territory, electioneering was not permitted in the polling place to avoid undue
pressure on voters. Free speech has been historically reasonably restricted to balance the
protection of voters and the election system. Over 125 years ago, voters were given private
voting booths where they marked their ballots in secret and were required to fold the voted
ballot so that no other voters or election watchers could observe the vote. Free speech
restrictions apply as well when campaigns are required to get permits for rallies. Libel and
slander laws restrict pure free political speech. We have long accepted that some
restrictions on free speech are necessary for the good of society. Colorados founders insisted
on such restrictions in their first and future elections. Elections without reasonable
restrictions on free speech would be chaotic and lack credibility and confidence of the
voters. The reckless notion that free speech should trump all other considerations in the
conduct of elections should be rejected.

Colorados mail ballots increase risk of undue pressure and corruption


While some other states have permitted photographing and displaying ballot selfies, most
states voters still vote in polling places in private voting enclosures, although it remains a
harmful practice. However, the impacts are not as pervasive as when voters have physical
custody of their paper ballots for weeks before the election. When all Colorado voters
receive mail ballots, they may conveniently bring them to ballot voting gatherings in
employer offices, union halls, churches, bars, social clubs, etc. where peer pressure will
impact their decisions, although the pressure will fall short of criminal intimidation. Voters
are no longer able to say, I dont get a mail ballot. I vote in the polling place. I cant join
you tonight at the gathering. Permitting voting parties virtually guarantees undue
influence of peers and authority figures. Conducting mail ballot voting parties at bars
hosted by campaigns will certainly become a standard and easy way of obtaining votes. To
call this unduly speculative is denying all we know about the history of election
corruption.

Door-to-door ballot harvesting is harmful enough today. Adding the ability for the willing
voters ballot to be reviewed by the campaigns harvester at the voter's door is begging for
undue influence and loss of the freedom of voting ones conscience.

While these injurious practices may be attractive to the selfish interests of some Colorado
lawmakers their re-election bids, your veto power is designed to halt this very type of
legislative abuse from self-interested lawmakers.

HB-1014 contains significant drafting errors and conflicts with other laws
The conflicts with other Colorado statues will make the law impossible to administer fairly
and will cause considerable voter confusion as well. A list of the more obvious errors is
contained in Exhibit A to this letter. Lawmakers have been informed of these errors that
require correction, but have declined to correct the substantive errors.

The bill should be vetoed to avoid creating conflicting and confusing new law.

Violation of the Colorado Constitution


Given the prohibition on identifiable ballots mandated by the state constitution, it is
disrespectful to the voters for lawmakers to enact laws in direct conflict with voters
constitutional rights and protections. This reckless lawmaking forces voters and advocacy
groups into unaffordable litigation to challenge their government. While sponsors may
claim that they anticipate a court decision favorable to ballot selfies, the legislature
should not make law to trump the constitution by speculating on future court decisions.

Enacting laws in direct conflict with essential extant voter protections violates the
legislators sworn constitutional duty under Article VII, Section 11 to pass laws to secure
the purity of elections, and guard against abuses of the elective franchise. HB17-1014 does
quite the opposite.

Any legislation that directly conflicts with the state constitution should be vetoed unless
the constitutional provision has been struck down by a court with statewide jurisdiction.

Statutory protections against undue influence are inadequate


Proponents assert that undue influence and peer pressure will not occur because there are
purportedly laws against intimidation. Of course, those laws only apply to the voting
process itself for truly provable intimidation tactics. Peer pressure expectations and subtle
suggestions during group voting of visible ballots will not rise to the level of prosecutable
offenses, even if the victim is willing to testify against the intimidatoran unlikely event.
The law does not attempt to address the post-election pressures of proving ones vote to
officials and authority figures. In fact, under HB1014 it is probably legal for the official or
boss or professor to ask to see a copy of the voters ballot after the election.

The limited provisions in the statutes are wholly inadequate to deal with real-life abuses of
influence and power over the voter.
Legislative goal of selfie proponents not met
Although proponents insisted that their rationale for this bill is the desire to post images of
their ballots on social media, they left in the statute the prohibition on viewers of those
postings sharing or otherwise disclosing them in state, federal, and other Article 13 and
Article 13.5 elections. However, there is no such sharing ban in municipal elections. This is
certain to create confusion with the voters who cannot be expected to know the nuances of
the asymmetrical code sections.

HB17-1014 is a bill that will do considerable harm and will fail to achieve the proponents
stated goals of free sharing of ballot selfies. There is no compelling reason for this bill to
be enacted into law.

Simple no-cost solution


In all state elections and most local elections, election officials routinely post sample ballots
on their websites for voter information. Such postings can be made mandatory with
instructions that sample ballots be clearly labeled as sample--not valid for voting. Selfie
enthusiasts may screenshot or download such clearly labeled sample ballots for marking
and sharing as their political expression. The official ballot and how the voter voted should
remain secret and private. The selfie enthusiasts have no compelling or legitimate reason to
prove how they actually voted. It seems logical that the courts would find such restrictions
on the First Amendment to be reasonable ones, given that the visual political expression is
not curtailed.

Summary
HB-1014 may seem to superficially (although not actually) satisfy a social media trend of
posting ballot selfies, but at the expense of the integrity of the election, voter protections
of the mandatory secret ballot, and invites serious corruption in the electoral process.
Colorado should not be the state to break from the progressive election reforms adopted in
the late 19th century that have served the country well. The preservation of the integrity of
the Colorado elections demands a veto of this bill.

Exhibit B includes references to relevant background reading materials.

Thank you for your consideration of our request for the veto of HB17-1014.

Marilyn Marks
Executive Director
Exhibit A

HB17-1014 Substantive technical errors and conflicts in law

1. Improper duty assignment. Duty of monitoring and creating restrictions for Special
District and other local government elections run by Designated Election Officials has
been erroneously assigned to the County Clerks, who have no jurisdiction over Article 13.5
elections, in most cases. This will be unworkable, and will cause legal conflicts with respect
to election management duties.

2. Bill does not permit promised social media publication or sharing. Bill does not
accomplish the stated, if flawed, goal of posting and sharing ballot pictures on social media.
See existing section (3) of statute 1-13-712, which is not being amended. It prohibits a third
party from sharing the ballot picture that the voter posted or shared. While the original
posting may be legal, sharing or retweeting the images would remain illegal. This would
create great confusion for voters and social media as well as the traditional media. If the
press obtained newsworthy pictures of politicians with their ballot selfies, the newspapers
or broadcasters could not publish them. This bills provisions and remaining restrictions
will greatly confuse voters.

3. Conflicts with CORA. CORA law for ballot production requires that custodians withhold
any identifiable ballots. When voters have identified their ballots on social media, to polling
place judges, to watchers, it will be impossible for a custodian to know which ballots are
identifiable after these ballots are posted to social media sites or copies given to others,
including candidates, who could easily match copies received from the voter with the official
CORA requested ballot. Voters could publicly post the front of their ballot, making it
identifiableand a CORA request can disclose how this voter voted the races on the back of
his ballot. This is particularly easy to do in a small election, or in a small precinct or ballot
style. A voter can mark her ballot to signal it, with a unique write-in candidate name.
Someone can find that ballot in a CORA request to see how the voter voted the back of the
ballot. That is an identifiable ballot, and the clerk is subject to criminal penalties if he/she
produces (discloses) it in a CORA request. But the Clerk has no way of finding all those
ballots that voters have published and identified on social media or to others. This is an
unworkable provision, without essentially shutting down the transparency provided by
CORA. The custodian would be subject to litigation for withholding the unidentifiable
ballots or subject to criminal penalties for disclosing identifiable ballots. The law cannot be
allowed to operate with these conflicting parameters. It is likely to shut down transparency
when the clerk must decide between civil litigation for withholding all ballots and criminal
penalties for exposing the ballots identified on social media.

4. Conflicting laws for state elections and municipal electionvoter confusion. 1-13-712
(state and federal elections, and local government elections) and 31-10-1517 (municipal
elections) differ as to what a 3rd party can do with a copy of someone elses ballot. Third
party may not share the ballot from a state, federal or local government election, while
there is no prohibition on 3rd party sharing for ballots from municipal elections. This is
going to be far too confusing for voters who cannot be expected to be knowledgeable of such
nuances of inconsistent laws for different types of elections.
5. Conflict with federal election rules on FWABs. Federal law permits overseas and
military voters without access to convenient ballots to vote Federal Write-in Absentee
Ballots. Under federal law, these voters must sign an affidavit swearing that they did not
show their voted ballot to another person.
(https://www.fvap.gov/uploads/FVAP/Forms/fwab2013.pdf) HB1014s permissiveness
conflicts with this federal restriction.

6. Direct conflict with the state constitution. Although this is a far more major problem
than the above, it is critical to note that this bill is in direct conflict with the state
constitution that does not permit ballots to be identifiable, where the voter can be
connected with his ballot. No court has struck down the state constitutions provisions, but
the sponsors are merely assuming that the state constitutions ban will be struck down.
That is far from a certain. Colorado should not be adopting laws that are in direct conflict
with the its constitution until after a final adjudication in a court with state jurisdiction.

7. Conflict with constitutions restrictions on election judges. Article VII, Section 8 requires
that judges be sworn not to inquire or disclose a voters votes if that information comes to
the judge. Such information should rarely come to a judge in secret ballot elections.
However, as voters are permitted to approach partisan judges and prove their loyal support
by showing their ballot, the judge cannot be reasonably restricted from looking at what is
being presented to them. HB1014 makes this an unworkable restriction.
Exhibit BRecent articles related to ballot secrecy

Hans von Spakovsky, Colorado Selfie Bill Opens the Door to Vote-Buying and Election
Fraud http://dailysignal.com/2017/03/14/colorado-selfie-bill-opens-the-door-to-vote-
buying-and-election-fraud/

Rick Hasen, Election Law Professor, UC Irvine http://blogs.reuters.com/great-


debate/2015/08/17/why-the-selfie-is-a-threat-to-democracy/

Paul Horwitz, Law Professor, Univ. of Alabama


http://prawfsblawg.blogs.com/prawfsblawg/2016/11/a-word-in-defense-of-ballot-selfie-
laws.html

Albquerque Journal Editorial: Selfies sacrifice sanctity of democracys secret ballot


https://www.abqjournal.com/876883/selfies-sacrifice-sanctity-of-democracys-secret-
ballot.html

Tennessee Attorney General Opinion defending selfie ban


https://www.tn.gov/assets/entities/attorneygeneral/opinions/op16-049.pdf

States, courts, wrestle with allowing ballot selfies, Fox News,


http://www.foxnews.com/politics/2016/08/15/states-courts-wrestle-with-allowing-ballot-
selfies.html

Reuters--Judge refuses to block NYs ballot selfie law http://www.reuters.com/article/us-


usa-election-selfie-new-york-idUSKBN12Y2MQ

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