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OpEdNews Op Eds    H2'ed 12/8/09

Aspen's Slippery Slopes: Constitutional rights violation, denial of crucial public records

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Aspen goes on to speculate that voters might have violated their own anonymity in some way that is undetectable by government officials, apparently claiming that such voters should be shielded from exposure. But making identifying marks on ballots violates the law. Taking such a position would be to say that the public right to know must be thwarted because someone might have committed a crime, or at least, violated a statute.


(From Marks' response to Motion to Dismiss) - The Defendant raises the possibility that some voters may have marked their ballots in a way that makes those ballots personally identifiable. Her position is not only that illegally marked ballots should benefit from the constitutional protection of secrecy in voting, but also that the mere possibility that some underlying ballots may be illegally marked justifies restricting the public's right of inspection of all of the TIFF files. The Court should reject this argument, since a voter who has illegally marked his own ballot can hardly be justified in relying upon the protection of Article VII, Section 8, when it is that voter's own illegal act that has compromised the anonymity of his ballot.

There are less draconian steps to protect voter privacy than concealing all the ballots from the public. But even if there weren't, the right to see the ballots would trump the right to privacy.

All rights are not equal. It is rare that two rights come into conflict with each other, but when they do, the inalienable rights trump lower level rights. For example: It is generally our right to own assets. But if you own some slaves as an asset, your right to ownership comes into conflicts with a higher level right. The right to liberty trumps the right to ownership.

The right to public control of elections is an exceptionally high level right, because it controls public sovereignty over the instruments of government which we have created. So if there was a conflict between ballot privacy and public right to authenticate every essential component of the election, the right to privacy would have to yield.

Ballots have been subject to public examination for a very long time with no evidence that some sort of large-scale vote buying or coercion scheme connects up to public inspection under Freedom of Information laws. There is no reason to believe that the right to privacy will be compromised in Aspen.

But the City of Aspen's own process and promises have been inconsistent regarding the supposed need to conceal ballot images. On election night, every ballot was projected in scanned sequence in the public tabulation room on large flat screens. Election night TV coverage (still available on internet archives) broadcast hundreds of ballot images on television as commentators were explaining the process! The ballot by ballot projection was planned and executed under the promise of "everyone can test the election" maximum transparency. Then, inexplicably, the City's position changed.


Because elections are the ultimate source of any public official's power, granted only with permission of the public, public right to know and authenticate every essential part of elections cannot legitimately be removed by government officials.

Germany's constitution was signed off on by the USA itself, and modeled generally upon US concepts. Germany's constitution is required to incorporate human rights provisions which the US not only voted for, but formally adopted and ratified as a treaty. The German high court affirmed the following constitutional principles for public elections in March, 2009. The court ruled that:

1. All essential steps of the process must be fully open to public observation.

2. Government checks may not substitute for public observation.

3. Expert technical knowledge may not be required of the public in order to observe all essential steps of an election.

By fighting for the right to examine ballot images, Marilyn Marks is performing an important service in pursuit of the original principles of US citizen sovereignty, which were carved out by the founders of our democratic system of government.


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Bev Harris is executive director of Black Box Voting, Inc. an advocacy group committed to restoring citizen oversight to elections.
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