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Government Privacy The Courts United States

Federal Judge Says No Right To Secret Ballot, OKs Barcoded Ballots 584

Posted by timothy
from the it's-the-little-things dept.
doug141 writes "A Colorado county put bar codes on printed ballots in a last minute effort to comply with a rule about eliminating identifying markings. Citizens sued, because the bar codes can still be traced back to individual voters. In a surprise ruling, Denver U.S. District Judge Christine Arguello said the U.S. Constitution did not contain a 'fundamental right' to secret ballots, and that the citizens could not show their voting rights had been violated, nor that they might suffer any specific injury from the bar codes."
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Federal Judge Says No Right To Secret Ballot, OKs Barcoded Ballots

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  • by Anonymous Coward on Saturday September 22, 2012 @10:30AM (#41420725)

    LOL!

    • by mrmeval (662166) <mrmeval@gm a i l . c om> on Saturday September 22, 2012 @10:38AM (#41420781) Journal

      We call it demockracy and that's not what we had. What we have now is an unstable crypto-plutocracy with the trappings of fairness and equality slathered on and maintained through the inertia of habit. We've not had a republic since the civil war which for the most part destroyed the concept of the sovereign nature of the states. There were a few amendments that eased the process. Governments will invariably acquire more power, sometimes it's given to it with great cheering and sometimes it's sullenly forced upon it and sometime it takes it by force.

  • Freedom (Score:5, Insightful)

    by Nerdfest (867930) on Saturday September 22, 2012 @10:35AM (#41420759)

    It seems that everywhere in the world, governments and corporations have decided that because we have the technology, it's okay to use it to abuse people's rights and freedoms in ways that would be illegal if they were done in person, or on paper.

    • by Shavano (2541114)

      The barcodes ARE on paper.

      And whether things are on paper or not wasn't one of the things she considered. What she considered was whether the law says you have a right to a secret ballot and decided that you don't and never have had such a right.

      This one's definitely going up for appeal.

      • by sumdumass (711423)

        I doubted it will go up for appeal.

        When the country was first formed, we did not have a secrete ballot. If the founding fathers did not see it as a right, I doubt any modern reading of the same constitution will provide the right. Unless the right was granted somewhere between now and then, it was just a good idea as far as the history of the US is concerned.

    • Re:Freedom (Score:5, Insightful)

      by wvmarle (1070040) on Saturday September 22, 2012 @10:50AM (#41420881)

      Smart governments, at least those that also like to keep up true democratic values, will do whatever they can to prevent election fraud. This is also one major argument against online voting, without the need of going to a polling station.

      Ballots that can be traced to a voter, or where the voter can be watched filling in the ballot paper, can be bought. This way elections can be bought. And that alone is enough reason to not have any identifying mark on any ballot.

      • The irony is that people for this might sincerely argue that it is necessary to trace the votes to prevent one kind of election fraud; but of course it opens up the door for a much more common kind.

      • On the bright side, if they bought my vote, at least I would be getting SOMETHING out of it all. As it stands right now, I neither get what I want nor do I profit from it. The addition of profit would actually improve the system from my point of view.

        (odd, CAPTCHA is uplinks)

  • Barcodes (Score:5, Insightful)

    by jkflying (2190798) on Saturday September 22, 2012 @10:35AM (#41420761)

    Obviously, just barcode the people. It will make things much easier for admin.

  • by InPursuitOfTruth (2676955) on Saturday September 22, 2012 @10:35AM (#41420763)
    The fundamental problem is that lack of anonymity creates pressure to change one's vote not due to one's personal beliefs, but rather due to pressure from an outcome of what another might think. In the extreme case, we are talking potential retaliation by a regime or political part. This has happened repeatedly through history, and happens today. While the extreme case doesn't appear to apply in the US today, in pre-WW II German, it did. If civilized countries can change quickly to oppress, then how, if our inherent right to vote does not come with an obvious need for protections such as anonymity, can our constitution protect us indefinitely?
    • Re: (Score:3, Interesting)

      by imamac (1083405)
      This. The last thing we need are people feeling pressured by an outside organization (looking at you Unions *and* employers). Some may already feel pressured one way or another but there is not way for an outside source to confirm a third party vote. This is terrible and had better be overturned.
    • You're right but the bigger threat isn't from a political player. The biggest threat is retaliation from your employer, your customers, your neighbors and maybe even your family. Imagine if your father-in-law found out you voted one way instead of another and didn't want you in the family because of it.

      So the big concern I have is how these barcodes work. Are they public? Are they encrypted? And what I mean by encrypted is if the value is scrambled to link back to the original voter.

      The reaso
      • by wvmarle (1070040) on Saturday September 22, 2012 @10:59AM (#41420935)

        So the big concern I have is how these barcodes work. Are they public? Are they encrypted? And what I mean by encrypted is if the value is scrambled to link back to the original voter.

        Merely being able to be traced back to an individual voter is bad enough. No matter whether it's encrypted, hashed, etc. No trace back of vote to voter should be possible.

        The reason I feel like this is unfortunately necessary is that it would be easy to sneak
          in votes that had just some barcode if it didn't have to be decrypted and validated.

        That can ALWAYS happen. That is why you need honest people in your election committee, and oversight. Allow before the election everyone who wants to see that a ballot box is empty, subsequently locked, and then that each voter can put one and only one paper in it. Keep on following this ballot box until it's opened and the votes are counted. Match total number of votes with total voters (knowing who voted is fine, you need to know that to prevent multiple votes by a single person). Have two opposing parties do this, add maybe an independent observer, and the risk of fraud is low without identification. That's how it's done.

        No situation is perfect, but over the years we have come up with pretty good ways of making sure elections are done fairly. Non-traceable votes are key to that.

        My suggestion would be to give users a randomly generated number that is then one way hashed with their SSN. Then that information can be published online and anyone can take their autogenerated number and plug it into the hash with their SSN. If they fear retaliation or if they fear their boss might demand the number from them to check on them, they can merely opt for the official to destroy their number.

        "So you destroyed that number and you can't show who you voted for? That must mean you did not vote for the party I told you to vote for."

        Again, NO TRACE BACK should be possible. Period.

        • by Kjella (173770)

          My suggestion would be to give users a randomly generated number that is then one way hashed with their SSN. Then that information can be published online and anyone can take their autogenerated number and plug it into the hash with their SSN. If they fear retaliation or if they fear their boss might demand the number from them to check on them, they can merely opt for the official to destroy their number.

          "So you destroyed that number and you can't show who you voted for? That must mean you did not vote for the party I told you to vote for."

          Yes. It would also allow purchasing of votes (no verification, no payout). It is essential that even if you have incentives to or are under duress to prove how you voted, you can't.

      • This problem has already essentially been solved. There are several secure cryptographic voting systems (some with open source implementations) which provide the ability to verify to your vote without it being linked back to you. For instance, Scantegrity [scantegrity.org] has a set of randomly generated codes on each ballot, one per candidate. When you vote, you copy the code corresponding to the candidate you selected and write it at the bottom on a detachable receipt. When you get home, you go to the website, put in y
    • I am quite torn on the issue. On the one hand, I see advantages to a secret ballot. With a secret ballot, those with power (whatever form that power takes) cannot effectively pressure others to vote according to the dictates of those with power. On the other hand, when everybody knows how everybody else voted, it is very hard to successfully carry out voter fraud ("200 people voted in this precinct. I know for a fact that 90 of them voted for Joe--I watched them fill out the ballot. Now you are saying that
  • Barcodes... (Score:5, Interesting)

    by Anonymous Coward on Saturday September 22, 2012 @10:42AM (#41420807)

    Don't eliminate identifying marks if you can download an app to decode the mark into a number, then run an algorythm against it to transform the number into names, and figure out how that individual voted.

    Which they did.

    On a local radio station.

    With a county comissioners barcode, they told him how he voted.

    This should be interesting seeing how Colorado is voting this year to legalize marijuana...

  • by tramp (68773) on Saturday September 22, 2012 @10:44AM (#41420839)
    The whole purpose of a paper ballot is to keep your vote secret. If that was not the case you could far more easily went in and say your choice aloud.
  • Lawsuit was bogus (Score:5, Informative)

    by tomhath (637240) on Saturday September 22, 2012 @10:45AM (#41420847)
    If you take the time to learn what information is actually on the ballot [dailycamera.com] you'll see that the lawsuit has no merit. The barcode relates the ballot to what was scanned when the vote was automatically tallied in case there are errors or a recount. Any possibility that the ballot could be linked back to an individual voter was speculation, the plaintiffs couldn't produce any evidence that it could actually happen.
    • by doug141 (863552) on Saturday September 22, 2012 @11:27AM (#41421167)
      She said that even if a ballot could be traced back to a specific voter, it doesn't show that a person's voting rights were violated, saying there was no "fundamental right" to a secret vote in the U.S. Constitution.
      • by rjh (40933) <rjh@sixdemonbag.org> on Saturday September 22, 2012 @12:00PM (#41421447)

        The secret ballot wasn't in use anywhere in the United States until 1888. The secret ballot cannot be something the Framers envisioned as one of our natural rights, because the secret ballot wasn't even invented until the 1850s. (Seriously.)

        If this nation conducted its presidential elections by a variety of non-secret ballot systems from 1792 to 1892, it's hard for me to take you seriously when you say that the secret ballot is a fundamental right.

        • by Immerman (2627577) on Saturday September 22, 2012 @12:49PM (#41421847)

          Hmm, the US is one of the first nations in history to elect their leaders. Do you think it's just possible that in the course of a couple centuries we've discovered additional safeguards that are fundamentally required for elections to actually serve their purpose? We got lots of first-hand experience about how non-secret ballots become a farce that just solidifies the power of those who can coerce your vote.

          Moreover, just because a right isn't codified in the constitution doesn't mean it doesn't exist. Straight from the Bill of Rights:
          AMENDMENT IX
          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. i.e. you're not even legally permitted to argue that the enumerated rights are more important than implicit one, much less that the implicit rights don't exist
          AMENDMENT X
          The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

          Those two were specifically added because the Federalists were afraid that the codification of certain rights would be used as an excuse to implicitly revoke others. Surprise, surprise, they've been proven right time and time again since then.

          • by rjh (40933) <rjh@sixdemonbag.org> on Saturday September 22, 2012 @01:06PM (#41421989)

            It's quite possible -- likely, even! -- that yes, we have discovered better ways. That doesn't mean those better ways are Constitutionally required, though.

            If you go to the Jefferson Memorial in DC, carved on one wall is a speech from Jefferson in which he declares that he knows the Constitution to be an imperfect document, and that he entrusts future generations with the task of correcting it by the process of amendment. If you believe the secret ballot is a fundamental right, then you need to acknowledge the absence of that as a flaw in the Constitution, and seek to correct that flaw by the process of amendment.

  • by Anonymous Coward

    They have no understanding of constitutional law. The constitution does now lay out our rights... we have our rights with or without the constitution. The constitution was meant to restrain the government. Since a few people thought that enumerating some of our rights explicitly in the Bill of Rights was a good idea, some how the foolish judges have the idea that if they weren't explicitly enumerated that they do not exist.

    • by u38cg (607297) <calum@callingthetune.co.uk> on Saturday September 22, 2012 @10:59AM (#41420933) Homepage
      The world of Constitutional Law was rocked today by an anonymous posting on the well known geek website, Slashdot. In a few eloquent lines, an anonymous coward swept away centuries of misguided thought and ushered in a new era in constitutional thought. "I'm blown away," said Chief Justice Roberts. "My life has been wasted." Other members of the court could not be reached for comment.
      • by msauve (701917) on Saturday September 22, 2012 @11:16AM (#41421063)
        You've never read any Constitutional history, have you?

        I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

        - Alexander Hamilton, Federalist Paper #84 [thefederalistpapers.org]

        Or even the Declaration of Independence:

        We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

        Bonus points for reading political philosophy.

        It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect - that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few.

        -Thomas Paine [ushistory.org]

  • Quick reading (Score:4, Informative)

    by puddingebola (2036796) on Saturday September 22, 2012 @11:02AM (#41420963) Journal
    Some skimming around the internet on this subject is fairly interesting. Australia was the first country to implement the secret ballot in 1850, largely to curtail intimidation and other election day shennanigans that were used to influence elections. All elections in the US were secret ballot by the 1892 presidential election. However, this article in the Atlantic argues that the surest way to increase turnout is by making voting a matter of public record. http://www.theatlantic.com/magazine/archive/2012/07/abolish-the-secret-ballot/309038/ [theatlantic.com]
  • The judge is right. (Score:5, Informative)

    by rjh (40933) <rjh@sixdemonbag.org> on Saturday September 22, 2012 @11:57AM (#41421417)

    There is no Constitutional right to a secret ballot.

    In the State of Oregon, all voting is done by absentee ballot. There's no privacy screen around you as you cast your vote. Your employer can stop by and say, "I'll pay you $1000 for your unused ballot, so I can fill it out how I want and submit it." If you're in an abusive family, your domineering alcoholic bipolar parent might force you to fill out the absentee ballot in front of them so they can control how you vote. There is no way the absentee ballot is considered a secret ballot, and yet we have no trouble when an entire state converts to voting by absentee ballot.

    The State of West Virginia guarantees, in its state constitution, every resident's right to cast a public ballot. There's no mention of the secret ballot.

    The secret ballot wasn't in use anywhere in the United States until it was first adopted by the city of Louisville, Kentucky, in 1888. The State of Massachusetts followed soon after. The first President to be elected by secret ballot was Grover Cleveland, in 1892.

    We didn't use secret ballots to elect Washington, Jefferson, Jackson or Lincoln.

    So, yeah. Anyone who claims we have a constitutional right to a secret ballot has an uphill road to hoe. History clearly shows that at no point in our nation's history has any court held the secret ballot to be a right.

    • Your rights exist outside the constitution; it does not GIVE you your rights! The people must fight to exercise them and maintain them. The founders knew this, see "unalienable rights" (not in the constitution BTW.)

      The ammendments restrict government powers from infringing on some of your rights; they never gave you rights. You have rights even if you are punished for exercising them. People drank what they wanted because that is their right and they defied government until prohibition was finally repealed

  • by interval1066 (668936) on Saturday September 22, 2012 @12:39PM (#41421757) Homepage Journal
    I was under the impression that the United States practiced secret voting as specified under the Bill of Rights or the Constitution but apparently its just a method, it was known as "Australian Voting" in the 1800's, and its not specified under any of our foundation documents, as far as I can tell. Should be I think. I can't envision a strong democracy without it. Its been practiced here in all the jurisdictions I've ever voted in.

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