Legal experts weigh in on ballot secrecy issue

Unlike the U.S. Constitution, the Constitution of the state of Colorado does include a provision for a secret ballot, Colorado legal experts recently said.

“The Colorado Constitution … provides for a secret ballot,” said Richard B. Collins, professor of law at the University of Colorado and director of the Byron R. White Center for the Study of American Constitutional Law.

“Article VII, Section 8 of the Colorado Constitution says ‘secrecy in voting is preserved,’” he said.

With that provision and the section saying that “no ballot can be marked whereby the ballot can be identified as the ballot of the person casting it,” he said, it seems clear that the state Constitution provides for a secret ballot.

“No one is contradicting that,” he said.

Collins, the author of “The Colorado State Constitution: A Reference Guide,” said, “I just think that no one is supposed to be able to see how someone voted.”

A democracy needs a secret ballot, Collins said. “There are countries that don’t have a secret ballot, and we don’t consider them democracies,” he said.

“While the United States Constitution does not provide the right for a secret ballot, it’s pretty clear that, in the Colorado Constitution, there is a constitutional provision for a secret ballot,” legal authority Carrol Multz said.

A trial lawyer for more than 40 years, Multz served as the 14th Judicial District attorney from 1974 to 1981, assistant attorney general, judge and professor at Colorado Mesa University, teaching law-related courses at both the graduate and undergraduate levels.

“It’s pretty straightforward,” he said.

Collins referred to the Marks v. Koch Court of Appeals decision in which Judge David Furman stated, “We conclude that the phrase ‘secrecy in voting’ ... protects from public disclosure the identity of an individual voter and any content of the voter’s ballot that could identify the voter.”

The Colorado Constitution states, “All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it.”

Furman stated in his decision, “The plain and common sense meaning of this clause, by virtue of the term ‘person,’ clearly indicates that the identity of an individual voter, and any markings on the ballot that could identify that voter, are to be kept secret.”