Standing On Principle Is Not 'Mal-Intent' by Dean Schooler

But the defensive Boulder, Colorado, County Clerk argues otherwise

October 23, 2005 — I have called Boulder County home for nearly 30 years. My family has benefited from living in this special place, and I have contributed and worked to maintain and sustain our community and civic culture.

I have volunteered and voted, served on boards, written on public policy and citizenship, contributed to charities, taught courses, been involved with my church, engaged in civic life through my political party and had the special privilege and honor of being one of the founders of a local community foundation.

What has happened to me as a citizen over the past year ought never to happen again, to me or to you. I have learned personally how some officials in our community can, intentionally or not, work to destroy citizenship and marginalize citizens — their neighbors who are only exercising their rights and fulfilling their responsibilities.

What happened to me could happen to you. We must work together to ensure it never happens again. I am talking about the struggle of a number of citizens like me to protect the constitutional guarantee of a secret ballot — an effort that was stopped cold by governmental arrogance, indifference, and rudeness.

Let me take you back to the August 10, 2004, primary election. It was then that I discovered a serial number and bar code on my ballot. I knew at the time that the Colorado Constitution, Article VII, Section 8, requires that "no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it." Because of the markings, I declined to vote and delivered an affidavit to the election official at my polling place.

My quandary as a citizen intensified in the weeks prior to the November general election. Realizing that markings would again appear on ballots, I began asking why. Why couldn't the county clerk and the million-dollar voting equipment she had purchased from Hart InterCivic produce a system that permitted election officials to separate the usual detachable portion of the ballot containing the serial number and bar code from the completed ballot? Why weren't she and her staff concerned about protecting the secrecy of the ballot, especially at a time when election officials everywhere were fighting to re-establish credibility with voters?

I also, but indirectly, took my questions to the county attorney and secretary of state. There I was confronted with the same "don't you dare question us" arrogance. As a last resort, five co-plaintiffs and I filed suit in Boulder District Court (Case No. 2004 CV 1281, Schooler et al v. Linda N. Salas et al, transcript Day 1, Day 2).

To our amazement, Judge Morris Sandstead, after testimony which included an admission by the county clerk that a ballot could possibly be traced to the person who cast it, found that "Boulder County ballots containing serial numbers and bar codes substantially comply with Colorado election law and the Colorado Constitution."

We decided not to appeal for three reasons:

• One, an appeal could only be made based on procedure, not testimony.

• Two, an appeal if successful would seriously disrupt the election to be held in less than a week on November 2, 2004. and

• Three, if our appeal were denied by the Colorado Supreme Court, the inexplicable ruling would apply to every county in Colorado.

Months later, when I read the Election Review Committee Report and, weeks later, the Clerk's Response to the Report, I saw both referring to an unnamed lawsuit, obviously ours, as an external factor that "caused or contributed to the delay in counting." (Remember the national embarrassment when Boulder County was three days late in reporting results of the presidential election?) The documents, however, went one step further and attempted to describe my and my co-plaintiffs' motives and intentions with language including the words "mal-intent," "frivolous," and "strategic lawsuit."

What's worse, nowhere in the Report of the Election Review Committee or the Response of the Clerk is there a description of the lawsuit and subsequent court hearing and testimony. Nor is there even a citation of the case by name, an explanation of the constitutional issue raised, or a mention that the serial number and barcode on ballots was the basis of the hearing. The Report and Clerk's Response demonstrate no awareness of the several hours of testimony or refer to the 202-page transcript of the hearing. Also, the concepts of voter secrecy, privacy in voting, and a citizen's right to cast a secret ballot are never mentioned.

Worse still, the Election Review Committee did not interview me or review the testimony in the transcript, almost all of which would have great value in understanding what's wrong with the Hart InterCivic system. The transcripts contain valuable testimony about the Hart InterCivic Ballot Now system, including how it works, how it does and does not protect secrecy in voting, how the Clerk led the Court to believe that ballots would be shuffled so that they were not in sequence (shuffling did not occur in most precincts despite her telling the court otherwise), and how Ballot Now can accommodate a removable stub.

The transcripts, in recent days, would also have been very useful to the Secretary of State before her office approved Boulder County's election plan. At the time, the Secretary of State should have been provided a copy of the transcript and not merely been told by the clerk that the plan had been approved by the court a year ago.

But the deception doesn't stop there. The Report and the Response make the following observations about the legal process:

"Such lawsuits, if brought with mal-intent (italics mine), cause confusion and interruption, as they did in 2004. Sadly, many then take action to criticize local election officials, and not the parties who commenced the lawsuit."

Response of the Clerk and Recorder, p. 8

"The activists effectively accomplished their goal of hindering the election process without accepting any responsibilities for the delays they caused."

Response of the Clerk and Recorder, p. 24

Publishing these words is an attempt to blame me and my plaintiffs for the embarrassing election debacle and, what's worse, mislead the public about our efforts to ensure that the election system and ballot procedures conform to the law and, in particular, to Article VII, Section 8 of the Colorado Constitution. In other words, when all goes wrong, officials tell citizens to blame citizens and not officials.

So, after this experience in citizenship, how am I doing?

No worse for the wear and, in some ways, better, because my sense of what citizenship means has only been enriched and multiplied. I value citizenship more because I have seen how others can cause it harm. I am also appalled, angered, deeply troubled, outraged and, yes, saddened by how both public officials and public appointees have, for whatever reason, chosen to produce and disseminate public documents which negatively characterize their fellow citizens in Boulder County.

What you have seen and what several of us have experienced firsthand is an attempt to define, label and marginalize other citizens who are simply and freely exercising their right to vote in secret, associate in political activities and speak freely on matters of great importance. Citizens have been made to seem wrong and, what's worse, of ill intent and wanting to cause harm.

Apparently, government officials in Boulder County have forgotten about the First and Fourteenth Amendments to the United States Constitution.

What has happened here in Boulder County ought never to happen again.

Dean Schooler is a resident of Boulder County.

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Added July 15, 2006

Last modified 6/14/09