Protest and Complaint of Marilyn R.

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

ballot should be redacted to make each ballot and vote completely

anonymous.
2. Beginning immediately, all future elections should use voting processes
that do not require identifiable ballots. Many other states have proper
processes for early voting and absentee ballots that protect the voters
privacy. Mecklenburg County can certainly meet such standards. If the
secrecy of the ballot must be compromised in limited circumstances, the
voter should be required to sign a waiver of his right to a secret ballot.
3. Mecklenburg Board of Elections should consult with the State Board of
Elections and legal counsel regarding North Carolina case law on whether
the November 3 nonsecret ballot election should be invalidated as an
unconstitutional election under North Carolina case law. During the legal
review process, potential violations of US Constitutional protections of the
4th and 14th amendments should be considered.
Summary
I am protesting the manner in which the November 3 Mecklenburg County
election was conducted. The election was not a free and fair election because of
the failure to provide all voters with an absolutely secret ballot as guaranteed by
the North Carolina Constitution. My right to vote was burdened by concern over
the privacy of my votes. I did not fully vote my ballot as a result of the
information I obtained at the polling place that my ballot would be traceable. I
inquired about the privacy of my ballot, but was not warned by officials in
advance of my questions. Nor did I voluntarily waive my right to a secret ballot.
The number of people similarly impacted cannot be accurately estimated.
I am seeking prospective relief for all future Mecklenburg County elections. I am
also seeking the redaction of all records created in the November 3 election that
can connect the voter and his voted ballot.
The board should consider the question of whether this election must be
invalidated because the election incorporates egregious and material violations of
citizens rights to a secret ballot. US Constitutional protections should also be
considered.
This memo is an integral part of my election protest filed on form
08 NCAC 02 .0111.

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

Example VVPAT ballot barcode (Not Marilyn Marks's ballot)

Withers v. Board of Com'rs of Harnett County, 196 N.C. 535 (1929)

146 S.E. 225

196 N.C. 535

Supreme Court of North Carolina.
WITHERS et al.
v.
BOARD OF COM'RS OF HARNETT COUNTY et al.
No. 92.

Jan. 23, 1929.

Appeal from Superior Court, Harnett County; F. A. Daniels,

Judge.
Action by J. A. Withers and others against the Board
of County Commissioners of Harnett County and others.
Judgment for plaintiffs, and defendants appeal. Affirmed.

*225 The plaintiffs are taxpayers and residents of what

is known as Harnett county school district No. 80, and the
defendants are the duly elected, qualified, and acting board of
county commissioners of Harnett county.
A special school election was held for the purpose of levying
a tax in said district. There were 615 registered voters, and of
that number 361 votes were cast in favor of local tax, and 83
votes were cast against local tax. At the hearing 342 registered
voters signed an affidavit to the effect that all ballots for said
election were cast freely, voluntarily, and openly, and, further,
that all of said affiants were thoroughly satisfied with the
manner in which said election was conducted.
Thereupon the following judgment was entered:
This cause being heard at Smithfield, N. C., on August 11th,
1928, and plaintiffs, for the purpose of this hearing having
waived their objections other than that a ballot box was held
by the election officer, having two slots, one marked For
Special Tax and one Against Special Tax, and that no
opportunity was offered voters to cast a vote in any box except
the one so marked, and the court finding as facts that such a
box was so founded and used; and no other opportunity was
offered voters to vote except them; and the Court being of the
opinion that said election is therefore void; it is ordered, that
the restraining order heretofore granted be continued to the
hearing.
From the foregoing judgment, the defendants appeal.

Attorneys and Law Firms

I. R. Williams, of Dunn, and N. McKay Salmon and Charles
Ross, both of Lillington, for appellants.
Hoyle & Hoyle, of Sanford, for appellees.
Opinion
BROGDEN, J.
The question of law for decision is whether or not the ballot
box provided for the election and the casting of votes therein
was in violation of the Constitution of North Carolina.
[1] The ballot box had no partition, and all votes, whether
placed in the slot labeled, For Special Tax, or in the slot
labeled, Against Special Tax, were therefore deposited in
the same ballot box, and all said votes were properly counted
and canvassed. Article 6, 6, of the Constitution of North
Carolina provides that: All elections by the people shall be
by ballot, and all elections by the General Assembly shall be
viva voce. The overwhelming weight of judicial authority
is to the effect that a vote by ballot implies a secret ballot.
The general principle is thus stated in 20 C. J. p. 175: The
constitutional provisions that all elections shall be by ballot
imply secrecy of voting, as distinguished from viva voce
voting; and in some jurisdictions secrecy of the ballot is
*226 regarded as a rule of public policy that cannot be
waived. 9 R. C. L. 1046, 1047.

This court has adopted the prevailing construction of the

constitutional provision in the case of Jenkins v. State Board
of Elections, 180 N. C. 169, 104 S. E. 346, 14 A. L. R.
1247. That case involved the constitutionality of the absentee
voters' law. Brown, J., writing for the court, said: The
plaintiff contends that the statute violates the provision of
our Constitution which provides that elections by the people
shall be by ballot, arguing that this means a secret ballot in
all elections. We admit that voting by ballot, as distinguished
from viva voce voting, means a secret voting, and that the
elector in casting his ballot has the right to put it in the box and
to refuse to disclose for whom he voted, and that he cannot be
compelled to do so. But this privilege of voting a secret ballot
has been held to be entirely a personal one. The provision has
been generally adopted in this country for the protection of
the voter, and for the preservation of his independence, in the
exercise of this most important franchise. Boyer v. Teague,
106 N. C. 625, 11 S. E. 665, 19 Am. St. Rep. 547.

2015 Thomson Reuters. No claim to original U.S. Government Works.

Withers v. Board of Com'rs of Harnett County, 196 N.C. 535 (1929)

146 S.E. 225

The South Carolina court, in State ex rel. Birchmore v. State

Board of Canvassers, 78 S. C. 461, 59 S. E. 145, 14 L. R.
A. (N. S.) 850, 13 Ann. Cas. 1133, declared: Therefore if
a general election is held viva voce or there are such other
irregularities as practically amount to such voting and the
electors are deprived of their constitutional right to secrecy in
casting their ballots the election is void.
[2] [3] The registrar filed an affidavit containing the following
paragraph: That at the said election there was a box prepared
for the voters to cast their ballots in, and in the said box
there were two openings, or slots, in the lid, one of which
was designated as a place for those voting in favor of the
proposition submitted to place their votes and the other for
those against the proposition to place their ballots, but that
all of the said ballots went into the same box; that this
arrangement was not made for the purpose of trying to
influence anyone to vote otherwise than he or she would
have and did vote, but for convenience of those who were
making an effort to secure a majority of the votes for the
election. This paragraph from the affidavit discloses the
purpose of providing two slots in the ballot box. Those who
were interested in carrying the election for the special tax
were desirous of knowing or ascertaining how strong the
opposition was to the proposal, in order that they might
send out for reinforcement if the fight became too hot or
the result too doubtful. Undoubtedly this was a laudable
proposition, and a worthy undertaking in securing better
school facilities for the community, but the constitutional
provision was designed and intended to protect every voter,
however humble or timid, from being compelled to run
the gauntlet of publicity in expressing at the polls his
free and untrammeled judgment upon the question at issue.
Furthermore, the constitutional provision was intended and
designed for the protection of the voter himself in drawing
about him, if he so desired, the impenetrable veil of secrecy.
The franchise has been won at an enormous cost, and
the exercise thereof should be free from every extraneous
influence and impelled only by the best intelligence and

best judgment of the individual who seeks in this manner to

express his will upon the questions affecting his welfare.

In the case at bar there was no evidence of undue influence or

intimidation, but there was a denial of that secrecy guaranteed
by the Constitution, and the election ought not to stand.
[4] [5] The defendants, however, contend that all votes
were counted irrespective of the slot in which they were
placed, and that, as no protest was made by any voter, the
constitutional privilege was thereby waived. Some of the
courts hold that such waiver would be contrary to public
policy, and, moreover, that a constitutional provision cannot
be waived except by the voluntary act of the voter himself.
However, before a voter can be charged with a waiver of his
constitutional rights he must have full knowledge of those
rights and of all the surrounding facts which will enable him
to take effectual action to protect himself. The record does
not disclose that voters were advised that they could place
their ballots in either slot, or that there was no partition in the
ballot box. When a voter went to the box to cast his ballot the
marking upon the box plainly indicated that, if he desired his
ballot to be counted for the proposal, it should be placed in
one slot, and, if he desired it to be cast against the proposal,
it should be placed in another slot. In the absence of such
explanation and of such knowledge, we cannot hold that the
principle of waiver or estoppel applies in this case.

A question was raised as to the power of Judge Daniels to

issue a restraining order. We do not discuss this phase of the
case, because the conclusion which we have reached upon the
question of the validity of the election renders such discussion
unnecessary.
Affirmed.
All Citations
196 N.C. 535, 146 S.E. 225

End of Document

2015 Thomson Reuters. No claim to original U.S. Government Works.

2015 Thomson Reuters. No claim to original U.S. Government Works.