A federal judge ruled against a challenge to Colorado’s election law that requires identifying marks on ballots. A citizen’s group had tried to block counties from printing ballots with bar codes that could be traced back to individual voters.
U.S. District Judge Christine Arguello ruled that there wasn’t a problem with those bar codes because the Constitution doesn’t guarantee anyone the right to a secret ballot.
Arguello may be correct in her ruling, but that glaring defect in the Constitution is nothing to feel comfortable about. The Coloradoan described how concerns about voter secrecy arose:
The plaintiffs claimed the county’s practices for storing ballots in boxes sequentially batched with an identifying document about which ballots each box contained left ballots vulnerable to being mined to the individual voter level.
Last year when a separate lawsuit affirmed that voted ballots are subject to public inspection under the Colorado Open Records Act, county clerks girded for a fight in the Legislature that they ultimately won. House Bill 1036 limits inspection of voted ballots to times that do not interfere with ballot counting and prevent the public from tracing ballots to an individual voter.
(Larimer County Clerk Scott) Doyle supported those limits, and in the course of testing ballots’ vulnerability to tracing ordered his staff to try identifying specific voters. They were able to, and using other public records found the Jefferson County clerk’s ballot among that county’s batches in 30 minutes.
Although there is the oddity of the Jefferson County Clerk voting in Larimer County, the trouble with the process is that anyone’s vote can be tracked down in a few minutes.
As the Denver Post reported on Arguello’s ruling, discomfort with a less than secure voting system is a big “so what?” constitutionally.
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.
While this probably has no affect on anyone’s vote in this election, it is not the thing to ignore until it does become a problem. Today, election officials are not anymore likely to engage in voter fraud than the exaggerated claims of widespread voter fraud circulating the country being true.
Yet all that is beside the point. No government needs to know how anyone voted. The lack of voter protections in the Constitution emphasizes that as great of a document as it is it has glaring holes that the framers could not have imagined in the late eighteenth century. Voting was limited in those times. Only as voting expanded to include disenfranchised groups and modified to include modern voting rights did it come to be assumed that some of those rights were Constitutional. A secret ballot is one of those assumptions.
The time may come when some of our modern voting rights need to be enshrined in the Constitution through an amendment. In the meantime, we can just pretend that voting is as sacred as we believe it is.