THE INVISIBLE HAND: A CASE STUDY IN STRIPPING AWAY ELECTION RIGHTS
By Bev Harris
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As Colorado election officials battle the public over right to examine ballots, new questions on public right to authenticate ballots have surfaced in New Hampshire, where the powerful First-In-The-Nation presidential primary will take place in 2012. If New Hampshire is to have its thumb on the scale in presidential politics, election transparency needs to be an absolute requirement. In a bizarre chain of events, nontransparency was entered surreptitiously into a New Hampshire statute in 2003.
NEW HAMPSHIRE IS GOING AGAINST THE GRAIN
Ballots are an open record under Colorado law though clerks are fighting the public on this. Marilyn Marks, supported by Black Box Voting, is litigating over wrongful denial of public right to inspect Colorado ballots. This is currently in the Colo. Supreme Court now (Looking good so far ... more on that below).
In Wisconsin where a hot political recount is taking place, the public can opt to examine ballots with or without a recount. In Michigan, the public can even take pictures of ballots. In Florida, a consortium of news organizations examined ALL the ballots from the 2000 presidential election. In California, two counties (Humboldt and Yolo) make photocopies of all the ballots available to the public for examination.
But in 2003, New Hampshire ballots were ever-so-quietly EXCLUDED from public right to know. How could this happen?
THE INVESTIGATION INTO NEW HAMPSHIRE'S REMOVAL OF BALLOTS FROM RIGHT-TO-KNOW LAW
Black Box Voting director Bev Harris, board member Nancy Tobi, and an extraordinary New Hampshire citizen named Deborah Sumner conducted an investigation this month into New Hampshire's action to exempt ballots from its Right-to-Know law. What we found was shocking.
From: Deborah Sumner
Subject: The mystery of why ballots are exempted from NH Right to Know Law
"Still trying to track down more info on why ballots were exempted from NH right to know law. It seems to me, if there was any discussion, it was removed from the official record or took place behind closed doors."
Sumner learned that in 2003 the New Hampshire State Senate sneaked an extraneous amendment into an unrelated bill, HB 627, pertaining to defining domicile to comply with a Help America Vote requirement.
In other words, in a bill about residency requirements for voter registration, suddenly, magically, and out of thin air, an amendment appeared to exclude ballots from New Hampshire right to know law.
"No evidence the amendment had a public hearing," Sumner writes. "Original bill did in the House."
TO PASS A LAW IN NEW HAMPSHIRE:
Both the New Hampshire House and Senate must pass the bill, and it must be identical in form.
In the case of 2003 House Bill 627, the house passed a bill which had nothing to do with excluding ballots from public right to know.
The senate got the bill, went into committee, had a hearing and obtained a detailed opinion from the attorney general, all pertaining to a bill that had NO LANGUAGE WHATSOEVER about removing ballots from public oversight.
TIMELINE FOR THE MYSTERY AMENDMENT
I traveled to New Hampshire and examined the file on this bill, requesting all notes, minutes, committee actions and testimony. Here is the curious timeline:
MARCH 2003: The House Elections Committee had a hearing and invited several officials to discuss the bill, which had NO LANGUAGE about excluding ballots from right to know law.
MARCH 2003: The House passed the bill, which included NO LANGUAGE about excluding ballots from right to know law.
APRIL 30, 2003: The Senate Internal Affairs Committee had a hearing on HB 627. At this time there was NO LANGUAGE about excluding ballots from right to know law.
APRIL 30, 2003: Bud Fitch from the Attorney General's office provided a legal analysis on the bill which contained NO LANGUAGE about excluding ballots from right to know law.
MAY 9, 2003: Suddenly, magically, and with no notes, testimony, hearing, legal analysis, or any visible explanation or discussion, an amendment appeared in the Senate bill to exclude ballots from right to know. This amendment was passed by the Senate.
JUNE 2003: The House saw what the Senate did to the bill. They REFUSED TO AUTHORIZE the version of the bill containing an exclusion of ballots from right to know law.
WHAT HAPPENS WHEN THE HOUSE AND SENATE CANNOT AGREE?
JUNE 2003: When the House refuses to concur with the Senate, a "Committee of Conference" is called to see if they can get together on the language. The Committee of Conference REMOVED the offending language about excluding ballots from public right to know.
JUNE 24, 2003: The bill, with the offensive language removed, was then passed by both House and Senate.
SO HOW WERE PUBLIC RIGHTS ULTIMATELY VIOLATED?
JUNE 30, 2003 a murky little amendment posing as a "technical amendment" was passed. This amendment is both improperly vague in its wording and illegal in its implementation.
TECHNICALITIES ONLY: THE "ENROLLED BILLS" COMMITTEE"
After both houses pass a bill, it is sent to the "Enrolled Bills Committee" which checks the bill for typos, spelling errors, and other minor problems. The Enrolled Bills Committee has no right to alter content in a passed bill. But they did.
The Enrolled Bills Committee added several paragraphs to the bill, then hid them with an opaque phrase. They incorporated content that had been explicitly removed in the version passed by House and Senate, hiding the changed content behind one vague and illicit sentence: "restore original language."
This language was weirdly vague. What "original language"? The "original language" in the house bill (WITHOUT the rights-stripping amendment); or the amended language from the Senate bill (WITH the rights-stripping amendment)?
WHO WAS THE INVISIBLE HAND?
Here's what I found:
- All notes and minutes from the Senate committee pertaining to creation of the right-stripping amendment are now absent from the file on HB 627 at the archives.
- All notes and minutes from the joint "Committee of Conference" are absent from the file.
- A note in the Senate Journal indicates that one senator, Sylvia Larsen, was removed midstream from the Committee of Conference, replaced with Senator Flanders who was formerly State Treasurer, reputedly a very tight-lipped guy. One would surmise that Larsen refused to play ball with the boys.
Even after booting out Larsen they could not reach concurrence with the House.
- No notes exist in the file from the Enrolled Bills Committee.
- No notes exist from the Office of Legislative Services (the research arm for the Enrolled Bills Committee).
- The file contains not a whisper about the ballot exclusion from the Secretary of State or the attorney general's office.
- In fact, all notes, minutes, research, testimony, or records of any kind which reference the offending amendment are missing from the file, and it is never mentioned in discussion on either the House or Senate floor.
All we can find was that on June 30 after the technical check for spelling and punctuation, exclusion of ballots from right to know arose like a wraith to appear in a bill which had already been passed by both houses without the exclusion.
JUNE 30, 2003: One obtuse line, "revert to original language" was put into a technical amendment and passed by house and senate.
WHO WAS ON THE ENROLLED BILLS COMMITTEE?
Senators Eaton, Green, Clegg, D'Allesandro and Larsen. Though there are no notes from this committee, not even the customary form indicating who approved and disapproved of the final form, a minimum of three of the above-mentioned senators were clearly complicit.
It was a ballsy move. It seems unlikely they would have inserted this change in content, violating protocol for the Enrolled Bills Committee, without encouragement from an invisible hand.
- The Office of Legislative Services coordinates with the Enrolled Bills Committee. I called them to inquire how this happened. They told me they cannot make changes in content, and limit themselves to suggesting spelling or punctuation changes along with a review to make sure the language doesn't violate existing law.
The Enrolled Bills Committee would have known that Sec. State Bill Gardner and Asst. A.G. Bud Fitch would sign off on it before sending the bill to the governor.
Bud Fitch has since left the attorney general's office to take a position with former Attorney General Kelly Ayotte (now a U.S. Senator). Bill Gardner and/or his key operations guy, David Scanlan, will run the 2012 New Hampshire first-in-the-nation presidential primary.
While removing ballots from public right to know might make it easier to control a presidential primary, it certainly doesn't offer transparency and it violates the public right to self-government, the very cornerstone of both the New Hampshire and the US Constitution. And it goes against trend: Our right to examine ballots is receiving more attention, and more formal recognition:
AN UPBEAT WORD ON THE COLORADO SUPREME COURT CASE
Will appeals court free Aspen ballots?
http://blogs.denverpost.com/carroll/2011/04/25/will-appeals-court-free-aspen-ballots/47/
By Vincent Carroll
As I pointed out in my Saturday column
http://www.denverpost.com/carroll/ci_17910900 -- Colorado elections aren't nearly as transparent as they should be because election officials insist that the constitutional mandate for "secrecy in voting" means that voted ballots must be kept under wraps.
But maybe that highly convenient reading of the law - convenient for city and county clerks, that is - is on its last legs. At least that's the sense I got at a hearing Monday at the state court of appeals involving a case pitting Aspen against an unsuccessful mayoral candidate who is seeking to view digital copies of ballots from the 2009 election.
Marilyn Marks' bid for the digital images was rejected by a district court, but the three-judge appeals panel appeared somewhat more sympathetic to her goal - as it should be.
Judge Arthur P. Roy seemed most skeptical of arguments that providing the images to Marks might somehow compromise ballot secrecy. And he was not reassured when the special counsel for Aspen, James True, suggested that an election judge who accidentally left a chocolate smudge on a voter's ballot might later recognize that ballot if it became a public document and thus discover the voter's choices.
Honestly. This far-fetched hypothetical was offered with a straight face as an argument for barring even carefully regulated public access to ballots.
True's other main argument was that voters who wrote in a candidate might be identified - not only by their handwriting but also, in a small
community, by the pattern of their votes. Yet both of these possibilities of a secrecy breach are almost as highly speculative as the chocolate smudge. Are these really the best arguments available for opponents of transparency?
Voted ballots are anonymous by law. And it's high time that Colorado courts told the clerks that they should stopping saying otherwise.
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