Grand jury has its hands full with Saguache election case

"Family style voting" in Saguache County caught the attention of the Colorado Elections Division, which noted in a December report that partitions were not used Nov. 2 to protect voter privacy. It is but one example of problems that plagued the county's disputed general election. (Teresa Benns/Center Post Dispatch)

A disputed election in south-central Colorado is now in the hands of a grand jury that is reviewing allegations that the clerk and other officials committed crimes when they tallied the votes.

The officials under investigation stood to benefit from the election’s outcome — most notably Saguache County Clerk Melinda Myers — who, along with County Commissioner Linda Joseph, at first lost but then won their races after Myers declared the races had to be retabulated due to a technical glitch.

The snafu hasn’t just initiated secret court proceedings. It’s also knocked over a political hornet’s nest.

The Colorado Secretary of State’s Office initially claimed it didn’t have jurisdiction in the races, despite its heavy involvement in the election in question. A secretary of state official was present on election night — when Myers and Joseph were thought to have lost — but no one from the state directly oversaw the retabulation that changed the outcome. State officials did, however, remain in regular communication with Myers and provided her with guidance on how to proceed. The office also sent two officials to Saguache County two weeks after the election to conduct an audit. The secretary of state also rejected the county election canvassing board’s request to hand count the machine-plagued races.

Although some staffers in his office maintain local races in the Saguache County election are not their problem, last week newly elected Colorado Secretary of State Scott Gessler vowed a public “hand review” of the ballots in an attempt to restore confidence in the region’s election processes.

Myers, however, isn’t having it.

“These ballots have been counted twice, reviewed by your office, canvassed and recounted,” Myers wrote in a letter to Gessler’s office the same day it announced the proposed hand review. “The deadline for contesting the election has passed; therefore, the outcome cannot change. It is unclear what this exercise would accomplish and could only serve to undermine the work already done in this election.”

Gessler has indicated he plans to sue Myers to gain access to the ballots — the same access his office had in November when Myers allowed state officials to handle them during the post-election audit.

The Colorado County Clerks Association is backing Myers.

“There are processes that we are avowed to protect,” association president Scott Doyle said. “One of them is preserving the sanctity of ballots. The cornerstone of our democracy is based on those ballots. It’s what we stand for as clerks. … The law provides that the secretary of state can go in and look at process and procedure; it says nothing about ballots.”

The secretary of the state isn’t the only one looking to review the ballots. The Denver Post is also seeking to access them — a request that Myers has also denied. “Nothing in Colorado’s statutes precludes public examination of ballots after a count is completed,” according to The Denver Post.

Election transparency advocates around the state are disputing the stance the clerks have taken. They argue that there is nothing in the state constitution that declares that ballots are supposed to be kept secret. The constitution mandates “secrecy in voting,” they say, not “secrecy of ballots.”

“The clerks are using the false argument about ‘secrecy of ballots’ as a scare tactic or sympathy evoking tool to try to get a trusting public to side with them in their effort to block public verification of elections,” Al Kolwicz of the Colorado Voter Group said in an email. “Why exactly clerks oppose public verification is unknown. No matter their reason, they are wrong. Public confidence increases with public verification.”

Furthermore, they say, that ballots are necessarily anonymous. They are not supposed to be signed or marked in any identifying way and thus can’t prove who voted a particular way in any election.

The clerks, however, argue that because each ballot has its own style depending on geographic districting, it would be theoretically possible for someone to figure who voted a particular way.

While the courts will be left to sort out those differences, Colorado Attorney General John Suthers is presenting evidence to a state grand jury and issuing subpoenas for witnesses to testify next month.

Officials in Saguache County stand accused of more than 30 misdemeanors. Myers will testify on April 28.

The Colorado Independent acknowledges for helping to fund the reporting of this story.

Troy Hooper covers environmental policy for the American Independent News Network. His work has been published in The Denver Post, Rocky Mountain News, Huffington Post, San Francisco Weekly, Playboy, New York Post, People and dozens of other publications. Hooper has covered the Winter Olympics in Italy, an extreme ski camp in South America and gone behind the scenes with Hunter S. Thompson on election night in 2004. Born and raised in Boulder, Hooper has a bachelor's degree in English from the University of California at Santa Barbara.