by Matie Belle Lakish
Although Saguache County’s November elections are months behind us, the repercussions of 197 initial “missing” ballots from the Crestone/Baca area continue to plague the County Clerk’s office and generate state-wide media coverage. An initial vote count on election night indicated the winner of the Commissioner’s race to be Republican Stephen Carlson, and the County Clerk’s race by Republican Carla Gomez. After the totals were posted, a discrepancy between the number of total ballots voted and the total of votes attributed to candidates was noted by election staff. The Secretary of State was notified, and a “re-tabulation” was ordered by the Secretary. The outcome of the re-tabulation,
which is similar to a recount, changed the outcome of the election, giving the Commissioner’s seat to incumbent Linda Joseph and the Clerk’s race to Melinda Myers.  Republicans asked for an investigation into the election, suggesting that something illegal may have taken place, and members of the Canvass Board, whose job is to certify the election, echoed the request. The issue became so contentious that a Colorado state-wide Grand Jury investigation ensued.
After months of work, the Grand Jury has returned a verdict. In a statement dated June 6, the 2010-2011 Colorado Statewide Grand Jury found nothing worthy of legal prosecution in regards to the election. The Grand Jury’s findings, which can be accessed via the Saguache County website at (look in the right-hand column for the link) go into great detail in an easy-to-read format about the details of the election and the issues connected with it.
The Grand Jury found some fault with the way certain aspects of Saguache County’s election was handled by the clerk’s office, and it also found some issues with the Secretary of State’s interactions with the clerk’s office, and some issues with the new electronic vote-counting software and the training that went with it. Additionally, the jury found that the Canvass Board “exceeded its authority in certain issues”. In sum, however, it found no intention of criminal activity, and nothing that would have changed the final vote count. A summary statement of the Grand Jury is as follows:
“The results of the 2010 general election were a product of the votes of the citizens of Saguache County, and were not affected by individual violations of the procedural rules by the Clerk and others. Clerk Myers and her staff committed the violations outlined in this report. The Grand Jury found, however, that the election “substantially complied” with the provisions of the election code. For the reasons explained in this report, the Grand Jury finds that the actions complained of do not rise to the level of criminal conduct requiring that charges be pursued. The decision against criminal charges was based on a thorough review of the evidence and testimony, including the mitigating factors described above, as well as common election practice throughout the State of Colorado.”
It appears that what happened regarding the vote tallies was truly a computer error, which may have been an operator error, since it was a new system for the clerk’s office. The software has a feature that separates the voted ballots into types, such as voters that voted at the polling places as opposed to those who sent in mail-in ballots. Instead of adding the votes at the polls (527) to the votes by mail (724) both numbers were initially recorded as 527 for each category. That meant that the total was 197 votes short. It was not until a review of the votes the following day, when numbers were discovered to be out of line with the totals, that an investigation ensued that revealed the error and changed the outcome of the election.
The votes were re-tabulated once under guidance from the Secretary of State’s office. During the re-tabulation, the error was discovered and corrected totals issued. This reversed the election results in the clerk’s and commissioner’s races. Ultimately the votes were re-counted three times. They were always recounted with the same machine and software, however, rather than a hand count as requested by the objectors and the Canvass Board. This decision, according to Myers, was not hers, as regulations, policies, and procedures at the State level dictated that the same methods be used in the recounts. All subsequent recounts had the same results, with the winners for the two races continuing to be Myers and Joseph.
The report also contains a two-page comment by Stephen Carlson that expresses his disagreement with the report’s finding. It appears that he feels that Myers should have been prosecuted for her errors. The Grand Jury, on the other hand, did not find intentional wrong-doing, and therefore, did not advocate that charges be brought in the case. Those who are interested in further information should read the report, as it is quite detailed.
In another, separate challenge to the election, District Judge Martin Gonzales is reviewing a case brought by the Colorado Secretary of State’s office, and is expected to make a decision in the next few weeks. On May 31, Judge Gonzales presided over a hearing about whether the Secretary of State has a right to view the voted ballots of Saguache County voters and share the viewing of the ballots with concerned citizens. Clerk Myers has refused to allow the unsealing of the ballots without guidance from the Court, as she does not believe doing so would preserve the secrecy of the ballots that she is sworn to uphold.
Although there is some precedent for the Secretary unsealing and counting the ballots, there is no definitive legal opinion on the subject. One issue in this case is whether ballot secrecy can be fully maintained in a sparsely populated county such as Saguache, when citizens are allowed to see the ballots. Objectors included Hispanic citizens from Center who recalled the efforts made in the 1970s to guarantee secrecy that put agricultural workers at ease about their votes not being known to their employers. This case could be precedent-setting, and perhaps for that reason, Judge Gonzales has not yet issued a decision.