It seems to be seen to benefit Aspen that this story is always about Marilyn Marks and preferably Marilyn alone. Although this article contains a remarkably high degree of accuracy in detail, and does mention my involvement, it unfortunately overlooks the real meanings behind the reported facts. My annotation will attempt to fill in for some ommissions (Harvie Branscomb).
In a ruling issued Tuesday, Pitkin County District Court Judge Gail Nichols sided with the city on issues related to the May 2011 municipal election, which featured races for mayor and City Council.
In November, Marks — a 2009 mayoral candidate who has prevailed in a lawsuit against the city over the right to inspect ballot images from that election — and fellow activist Harvie Branscomb, of El Jebel, submitted a Colorado Open Records Act request to the Aspen Election Commission to allow them access to inspect the actual paper ballots from the 2011 election.
The article could have said "and separately another activist Harvie Branscomb." Andre Salvail chose "fellow" perhaps as in "fellow traveller" etc. - likely a deprecating term rather than neutral.
Harvie applied first for inspection, Aspen litigated, and then Marilyn Marks joined the existing case weeks afterwards with a subsequent request. Elizabeth Milias also applied for and retracted a request.
But Aspen City Clerk Kathryn Koch, through the City Attorney's Office, denied the requests on the grounds that compliance would violate state and city law. The city has maintained that Koch, not the Election Commission, is the custodian of the records.
When Marks and Branscomb threatened to sue, Koch and the city filed a motion for summary judgment with the District Court, saying the ballots were exempt from public inspection based on open-records regulations.
"When Marks and Branscomb threatened to sue" is an imaginative but misleading stretch. Harvie's original request had a simple boilerplate sentence retaining the right to sue that has been described in the press as if he (I) was planning to sue, which has never been true. It was the City's choice to overreact to the simple statement.
The City Clerk responded as if she had been asked for the records, when in fact it was the possibly (presumably) independent Election Commission that was asked, and for good reason. The Election Commission arguably had the right to provide the records. To describe this technically correctly, as Salvail has done, is to miss the main point.
A simpler and more correct description follows: Harvie Branscomb applied deliberately to the Election Commission for inspection, not to the City Clerk. However, the Clerk (not the Election Commission) then sued Harvie in an attempt to block Harvie's inspection. The case is known as "Koch v. Branscomb." Even before asking the court for advice, the Clerk's Office denied Harvie's request on behalf of a purportedly independent Election Commission even though not asked. A reason to sue Harvie first is to avoid having to pay Harvie's court costs if Harvie were to sue for fulfillment of the request. Suing is the only remedy for a denial- there is no administrative oversight for open records requests in Colorado. It is also of note that probably everyone agrees that these 2011 ballots are uncontroversial in content.