Download the pdf of the filing by clicking here, or read it below the break and below the comments.
Submitted comments by Mike LaBonte, a Massachusetts citizen election official, Al Kolwicz of Colorado Voter Group, and Harvie Branscomb (editor of this blog).
--end of Al Kolwicz comments--
Case Number: 09 CV 294 Div.: 3
Plaintiff: Marilyn Marks, Defendant: Kathryn Koch
KATHRYN KOCH’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO AMEND JUDGMENT
compliance with Section 31-10-616(1), C.R.S. can only mean that the City Clerk may not take any action that would fail to secure the ballots and ballot images in a manner that provides for their “being kept so that no one can ascertain how any voter may have voted.” Anything less could not be considered even close to compliance with the requirements of the statute.
Plaintiff’s argument that Defendant can make the ballot images available for public inspection and still be in “substantial compliance” with state law is simply frivolous.
5. The legislative history of Section 31-10-616(1), C.R.S., is immaterial to the issues before the court.
Plaintiff finally argues that the court should interpret §31-10-616(1), C.R.S., with reference to its legislative history in order to hold that the statute doesn’t mean what it clearly states. If the statute is obsolete, the state Legislature should amend it. It should be noted, however, that §31-10-616, C.R.S., was amended three times since 1946 when Plaintiff believes the statute became obsolete. See Source note showing legislative history of §31-10-616(1), C.R.S., (the entire section was repealed and reenacted in 1975, subsection (1) was amended in 1979 and again in 1996.) The weakness of Plaintiff’s argument is actually emphasized in examining the most recent amendment to the statute. The 1996 Session Laws, reveal that the legislature approved a change in the sentence which addresses the destruction of the ballots. Prior to 1996, the ballots could be destroyed “by any other method approved by the state archivist.” (Emphasis supplied.) The 1996 amendment changed “state archivist” to “Executive Director of the Department of Personnel.” See, Chapter 273, Section 135, Session Laws of Colorado 1996. If this section of the Code was obsolete, as Plaintiff argues, then the Legislature had the ability, if not the duty, to
address that in the 1996 amendment, in the 1979 amendment, or when it was repealed and
reenacted in 1975. It is simply impossible to argue, as Plaintiff attempts, that this statute is
obsolete and thus, to be ignored.
CONCLUSIONPlaintiff has failed to explain why the court should exercise its discretionary powers to amend its Order on Pending Motions. The reasons provided by Plaintiff in the instant motion were previously addressed in Defendant’s Memorandum in Support of her Motion to Dismiss or should have been presented in Plaintiff’s various pleadings filed in this action.
The sum and substance of Plaintiff’s arguments for requesting an amendment is the same arguments she has presented throughout her case: (a) that an image of a ballot is not the same as an original ballot; and, (b) that Section 31-10-616(1), C.R.S., does not mean what it clearly states.
Defendant urges the court to summarily deny Plaintiff’s motion as there are no grounds to amend the court’s previously entered Order on Pending Motions.
DATED this 6th day of April, 2009
s/ John P. Worcester John P. Worcester City Attorney
s/ James R. True James R. True Special Counsel
Robert A. McGuire, Esq. 1624 market Street, Suite 202 Denver, Colorado 80202
s/ Janet Raczak
JPW-4/6/2010-142848-G:\john\word\plead\Marks - CORA\memo in suppoprt of motion to dismiss.doc