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Marks
Charlotte-Mecklenburg Board of Elections
November 9, 2015
Re: Municipal election Nov. 3, 2015
Nature of protest
Violations of constitutional rights to secrecy in voting occurred on a significant
scale. My ballot and all early voting/absentee voted ballots are identifiable. All
ballots cast prior to election day in the November 3 election are traceable back to
the voter via permanent electronic and/or paper records.
The North Carolina Constitution, Article VI, Section 5, grants all voters the right
to a secret ballot. Mecklenburgs process of early and absentee voting
compromises this right without disclosure to the voter. There is no implied or
explicit waiver of the right to a secret ballot at the time that voters mark their
ballots. Voters are not officially advised of the officials ability to connect the
voter to her individual, purportedly private choices. It is likely that many voters,
if made aware of this traceability, would not vote. Other voters who are aware of
the scheme of traceability may vote differently if provided with the opportunity to
vote a secret ballot.
In order to vote I was also forced to disclose my uniquely identifiable ballot to
other persons and officials in violation of the criminal offense specified in 163273(a)(1).
Background
In the late summer this year, I relocated from Denver, Colorado, to Charlotte,
where I was raised. I took advantage of one stop registration and early voting to
register in North Carolina and vote in the November 3 election. I did not vote in
the November 3, 2015, Colorado election and withdrew my Colorado voter
registration.
I registered and voted at Morrison Library on October 31. I also delivered my
elderly mothers voted absentee paper ballot sealed in its return envelope to the
election staff at that polling location. I inquired of the staff whether the
permanent marking CIV1091 PCT 75 on the face of the ballot and the return
envelope were unique and identifying marks on my mothers ballot. (Exhibit 1)
Staff acknowledged that the number was unique and identifying.
I requested to personally vote an anonymous paper ballot and was denied. I was
told by officials that I must vote a DRE (touchscreen) ballot. No anonymous
paper ballotand, in fact, no paper ballot at allwas permitted to be used in my
circumstances.
I prepared my ballot application, and the election official marked it with a one
stop number of MOSD3. (Exhibit 2) As a poll worker took me to the iVotronics
machine, she entered the MOSD3 identifier into the iVotronics machine. I
inquired whether this number was being attached to my specific votes, and the
worker confirmed that it was. I objected, but was told that officials do not look
at the records to ascertain how voters vote and that the identifying entry must be
made in order for me to vote.
I voted a small number of permissible votes on the ballot after understanding
that my vote would traceable by officials. I purposely undervoted certain races
out of concern for my privacy.
As I voted, I noted the simultaneous printing of the VVPAT (Voter Verified Paper
Audit Trail) of my choices. I was shocked at the end of the voting process to see
not only the summary of my votes but also the MOSD3 number printed on the
VVPAT alongside my personal vote choices. Further concerning was the specific
barcode printed on the paper tape encoding the personalized specific information
in machine readable format as to how I voted. (example-Exhibit 3) In preparing
and casting this identifiable ballot, I was forced to allow [my] ballot to be seen by
[another] person although prohibited by 163-273(a)(1). In the event of a
recount, challenge, or audit, my ballot image will be seen by other people,
including representatives of the campaigns.
I was informed by poll workers that only those voting on election day in their
precincts are permitted to vote a ballot that is anonymous. Because I registered
late in the process, I was not given an option to vote a private, anonymous, secret
ballot as the constitution permits. I reviewed my registration and ballot
application language and noted that I did not waive my right to a secret ballot,
and I informed the polling manager of that fact. The manager stated that the
early votes must be retrievable in the event of a sustained challenge. The manager
informed me that ballots cast on election day in the precinct polling place are
anonymous, secret ballots. It is unlikely that most voters are aware of the
disparate treatment between early voters and election day voters.
Additionally, my mother, Rachel B. Marks, age 93, physically needs to vote a
paper mail-in absentee ballot, as she is unable to visit her precinct polling place.
Her ballot was marked with a permanent identifiable marking (CIV1091 (Exhibit
1)). She did not waive her right to a secret ballot, and she was not warned that
the code on the face of the ballot was a unique marking. As the ballots are
processed and handled for optical scanning, her identifiable voted ballot is shown
to other persons, including election workers and appointed campaign observers.
Violation of constitutional right to a secret ballot
Article VI, Section 5, of the North Carolina Constitution provides
All elections by the people shall be by ballot, and all elections by the
General Assembly shall be viva voce.
The North Carolina Supreme Court has interpreted the clause to mean that the
voters ballot must be anonymous and confidential unless the voter waives that
right, and that the voter must have full knowledge of those rights and of all the
surrounding facts which will enable him to take effectual action to protect
himself. Essential holdings relating to North Carolina voters secret ballot
rights are explained and cited in Withers v. Board of Com'rs of Harnett County,
196 N.C. 535 (1929) Attached Exhibit 4.)
In fact, UOCAVA voters (military and overseas voters) who return their ballots
electronically are required to acknowledge that they are waiving their right to a
secret ballot. It is a federal requirement to provide such warning to UOCAVA
voters. Warning of the lack of secrecy in voting was provided to some voters
(UOCAVA voters) but not to others. Early and absentee voters are not being
warned of the traceability of their votes.
The states secret ballot laws are intended to protect the voters from election
officials and observers being able to determine how voters votenot merely
from having that private information disclosed to the public at large. The current
early voting and mail ballot voting process violates the protections of the state
constitution and the statutory prohibitions against allowing another person to see
ones voted ballot.
It is irrelevant whether officials and observers have attempted to ascertain how I
voted, or are instructed not to ascertain that information. The harm to the voter
occurs at the time of voting when she has knowledge that her vote is not private,
and her voting behavior is impacted. Additionally, harm is also done at the time
of voting if the voter is unaware of the traceability of his vote and he exercises his
right freely, without fair warning that his vote is traceable.
Impact on election results
It is impossible to know how many voters, like myself, became aware of the lack
of secrecy in early voting and who failed to fully vote their ballot as a result, or
declined to vote. The number of voters who declined to vote at all because of the
lack of privacy is unknowable. It is also impossible to determine the number of
voters whose choices were impacted by their awareness of the traceability and felt
compelled to vote for certain candidates. In almost all cases, voters impacted
would likely not voluntarily self-identify and file complaints for the same reason
they declined to vote their conscience.
Relief requested
1. All voted ballots, their copies, electronic images, memory cards, audit files,
or other electronic records that can be used to connect a voter with his/her
Marilyn R. Marks
7035 Marching Duck Drive E504
Charlotte, NC 28210
970 404 2225
Marilyn@AspenOffice.com
identifiable number
not detachable
individual number
attached to vote
in iVotronics
End of Document