View From a Height
Commentary from the Mile High City
Sunday, October 10, 2004

Jim Spencer - A Worried Man 

Jim Spencer is a worried man. If only he were as worried about actual criminal activity as he is about election judges not being able to read. I was sitting in the same hearings that Spencer was, listening to the same testimony. Well, actually, I was listening to more of the same testimony. Apparently, Spencer was reading his paper during the parts he disagreed with.

I hope Denver District Judge Morris Hoffman makes provisional ballots available to those who have applied for absentee ballots, a practice Colorado law currently prohibits. I hope the judge lets provisional ballots cast in wrong precincts count in statewide and regional elections, not just for president and vice president, as the secretary of state envisions. I hope Hoffman corrects a Catch-22 in the provisional ballot application for those who arrive at the polls without proper ID.

Therefore, Spencer hopes that Judge Hoffman eliminates both statutory and regulatory backstops for a system that lets people register (provisionally, of course) without any form of verifiable ID. This despite the Judge's clear assertion that the General Assembly has the right to assess the risk of voter fraud, and to enact rules to deal with it, and that his court does not. This despite the fact that the Catch-22 exists mostly in his mind.

Begin with the provisional ballot application form. If you don't bring your driver's license or other form of ID to the polls, you can only cast a provisional ballot. However, the provisional ballot application requires a driver's license or Department of Revenue number and says that if you don't provide it, your application will be thrown out.

That won't happen, Secretary of State Donetta Davidson testified. But it is what the application says.

The testimony made it quite clear that the provisional ballot form is also used to register voters, on other days of the year. Election judges are given a booklet with the rules. If an election judge is told to disregard the ID requirement on the provisional ballot, he should do so. He should tell the voter to do so. Why this is particularly difficult or onerous for any judge or voter capable of filling out the ballot in the first place is difficult to say.

A survey of data from nine Colorado counties by the Bighorn Center for Public Policy suggests rejection rates of provisional ballots soared from their first use in the 2002 general election to the August 2004 primary.

The survey presented at trial was incomplete, inadequate, and never subject to any sort of independent verification. The judge specifically stated that while there were not sufficient questions to bar the report from the record, the gaps in that report would affect the weight he gave to that report. Spencer simply takes the report for granted.

Even if one accepts the report at face value, the mere fact that provisional ballots were rejected cannot, by definition, be cause for alarm. They were rejected, mostly, not for lack of ID, but because of the rule preventing people who have requested an absentee ballot from also voting provisionally. After all, a distressing number of pitches outside the strike zone are called balls, much to the consternation of pitchers everywhere.

On Tuesday, a Boulder County election official testified that she will count only presidential votes on provisional ballots cast by folks who go to the wrong precincts Nov. 2. That's what the federal Help America Vote Act (HAVA) requires. Meanwhile, state law forbids anyone from voting in the wrong precinct. At the same time, a state regulation allows all state and local votes to be counted on provisional ballots cast by those sent to the wrong precinct by an election official.

Personally, I think we could get by counting all state-wide votes. Spencer is just factually wrong when he states that local votes count. Different precincts are in different districts, and votes that would not have been available in the home precinct would not have counted. But he ignores both the massive hand-counting expected in this election, and the incentive for people to lazily vote in the wrong precinct created by the knowledge that the really important votes will count, regardless.

These contradictions are no worse than another bureaucratic boondoggle I call "affirmative deception."

HAVA says a person considered ineligible to vote "shall be permitted to cast a provisional ballot." The lawsuit showed that some precincts in the August primary refused to provide those provisional ballots. Others passed them out, knowing they were never going to count because of conflicting state law.

If you apply for an absentee ballot in Colorado, did you know that you sacrifice your right to vote at the polls? When you show up at your precinct, you can't vote, even if you have not cast your absentee ballot. Instead, you must travel to your county election commission office and apply for a replacement absentee ballot. That's the only way your vote will count.

Nevertheless, a witness testified that counties sometimes give provisional ballots to absentee ballot applicants, knowing those provisional ballots will automatically be thrown out.

Actually, this is closely related to a process I call, "aggressive self-protection." Election judges are instructed not to issue provisional ballots to those who have requested absentee ballots. They are told, however, that if the person absolutely insists on voting provisionally, to go ahead and give them a ballot if they felt threatened. Several officials testified that there were cases of election judges being concerned for life and limb. Perhaps election judges should be encouraged to actively exercise their right to bear arms on Nov. 2.

Spencer also professes shock, shock! that someone who's requested an absentee ballot, which might not be received until after the election, should't be allowed to cast a regular ballot on Nov. 2. As the Secretary's official put it, when you request and absentee ballot, you have chosen to cast your ballot that way. That's your decision, and you don't get to bollux up the process, creating extra work and extra confusion because you forgot to send it in, or decided that you like the smell of library paste, after all.

In the course of his column, Spencer ignores any reasons presented for protected ballot integrity, giving his complete and absolute credulity to those that overstate the risk of your ballot being rejected. No wonder he's so worries.

No problem, Jim. You won't be worried long.

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