ASPEN — In a closed room in the Pitkin County Library basement late last week, Democrat and Republican election judges were busily tallying write-in ballots for those who voted early or mailed in their ballots before Election Day.
While the judges closely examined the ballots and hashed out the guidelines laid out in a 28-page manual on voter intent, poll watchers for third-party and unaffiliated candidates strained their eyes six feet away.
The decisions made by the write-in board carry unusual importance this year. Colorado Rep. Kathleen Curry, a three-term legislator from Gunnison who left the Democrats a year ago, is running unaffiliated, meaning that her supporters — and there are a lot of them — must write her name in on the ballot.
On top of that, Colorado Secretary of State Bernie Buescher has ruled that supporters of write-in candidates must also fill in the oval, or box, next to a write-in candidate’s name in order for that vote to count. Curry has filed a lawsuit in Denver challenging Buescher’s rule, arguing that state statutes don’t mandate that a box or oval be filled in and that the secretary of state’s ruling is unconstitutional.
In Aspen, election officials are carefully separating the ballots that have ovals filled in next to the writing of Kathleen Curry’s name from the ones that don’t. The same goes for the other nine write-in candidates on the Pitkin County ballot this election year.
Election judges scrutinize both piles of ballots — those with ovals filled in and those without — to try to determine voter intent. If, for instance, a voter writes in “Kathy” in the House District 61 race, Curry will not get the vote. If the voter writes in “Curry” or “Kathleen Curry,” she will. If the voter misspells her last name as “Currie,” she’ll also get the vote.
Sometime this week after the election, a judge will rule on Curry’s suit against Buescher so long as her contest against Roger Wilson, D-Missouri Heights, and Luke Korkowski, R-Crested Butte, is close.
But colored ovals and boxes are just one problem. Technical difficulties could prove to be another.
Last week, there were at least seven instances in Pitkin County where the machines that read and process ballots made sorting mistakes. Six ballots were erroneously placed in the write-in bin, and one ballot that should have been placed in the write-in bin was not.
Election officials say they believe they have figured out the core cause of the problem — crinkled mail-in ballots — and they point out they have thoroughly tested their machines and are double-checking their tabulations.
“Ordinarily, whether you sort write-in votes into the proper bin doesn’t matter because the write-in candidates are almost never material to the outcome of an election,” said Dwight Shellman III, election manager for Pitkin County.
He added that officials in Aspen are going above the call of duty, testing election equipment beyond what is required by law “because in this case the incumbent is the write-in candidate, so it is reasonable to expect Curry will get many more votes than the typical write-in candidate. In our defense, we’ve never encountered this problem before because we’ve never had a write-in candidate who created so many ballots in the write-in bin. It is sort of a lesson learned.”
Election officials maintain their counts will be free of serious errors.
But the mistakes the machines have made in Aspen aren’t helping Curry sleep at night.
“I am not pleased with what I see up there,” Curry said Monday. “My confidence is not high with their mechanical components. I do think the intentions are good and the people are doing their very best, but I am concerned about the accuracy of the machines. I’ll be pushing hard for a recount in Pitkin County.”
Making matters more unfavorable for candidates like Curry, as well as third-party candidates like Colorado gubernatorial candidate Tom Tancredo (American Constitution Party), is a rule that keeps poll watchers six feet away from the write-in ballot review process, and other ballot-review processes.
From that distance it is difficult to see the marks on the ballots that the Republican and Democrat election judges are basing their decisions on, which makes it hard for Curry and Tancredo’s poll watchers to know when to protest.
Some watchdogs say the six-foot rule is a new interpretation of Colorado law by the Secretary of State’s Office. Buescher’s office contends the six-foot rule is backed by statute and it isn’t going to change.
“As recently as the August primary, poll watchers were actively observing the marks on ballots from close at hand, verifying hand tallies of all votes in Jackson and Kiowa counties,” according to former Aspen mayoral candidate Marilyn Marks, who now spends her time as a dogged election transparency advocate.
“Unaffiliated watchers were verifying machine read-outs, tapes and precinct polling place reports in Pitkin County. …The six foot perimeter unfortunately further concentrates control of the election process into the hands of the two major parties through their election judges.”
In an e-mail to Marks, Colorado Elections Director Judd Choate wrote that the secretary of state “has not recently changed its interpretation of the watcher regulations. Our current interpretation is the same as our 2008 interpretation and years previous to that. As I have said to you on several occasions now, I strongly encourage you to take us to court if you don’t like our interpretation. Who knows? It’s certainly possible we are wrong — although I doubt it. If you are so confident that you are correct, prove it.”
Responses from the state like that are frustrating other election reform advocates like Harvie Branscomb, a Missouri Heights resident and the co-chair of the Eagle County Democrats.
“There is passing of the buck here in Colorado from the [secretary of state] to the clerks, and from the clerks back to the [secretary of state]. This game needs to be documented so that the legislature and the courts can see how citizen involvement in election criticism and oversight works (or fails to do so). Telephone calls do not serve to leave such a record,” Branscomb wrote to Choate.
“The idea that citizens who are credentialed to represent the public to verify every process must be kept 6 feet away from their election is [an] anathema to election quality. … In this upcoming election, substantial harm to the public oversight will be wreaked by the current Department of State interpretation of the 6 foot law to apply to cases where the voter is not present. I understand that you say that you cannot personally change that interpretation. I wonder who or what entity can (beside the court or the legislature).”
Shellman, the election manager in Pitkin County, sees it both ways.
“I can totally understand Kathleen Curry’s lack of confidence in throwing her fate to a Democrat and Republican judge,” he said. “But it gets very stressful and I can see why judges feel very uncomfortable with people looking over their shoulders. It is not because they’re trying to hide anything. It is because they’re trying to concentrate on doing their job fairly and accurately.”
And for the next 24 hours and possibly longer, the fate of write-in candidates like Curry could be up to the bipartisan judges like the ones working behind closed doors in the Pitkin County Library basement.