The following email was reportedly sent to clerks and election officials in all Colorado counties, in an effort to deny the public’s right to examine voted ballots. This communication resulted from my Open Records request of several counties to examine 2008 and 2009 voted ballots. The SOS attempts to put the decision back to each clerk, which of course makes for confusing and inconsistent practice county to county. I have received a denial from Delta County while two other counties are scheduling appointments for me to examine ballots. Three other counties have asked for more time to do more research.
With primary elections in process and general elections in the fall, resolution and consistency need to be immediately addressed in favor of total transparency. For example, Michigan’s voters have the right to verify (http://www.ag.state.mi.us/opinion/datafiles/2010s/op10324.htm ) the election of their U.S. Senator, Governor or local county clerk. Why should Coloradoans have less right to verify the election of our representatives who will be serving side by side with their officials?
The SOS rationale is curious that ballot inspection causes them “serious concerns about the potential for adverse effect” on voter confidence!
From: State Election Division
Date: July 20, 2010 4:26:03 PM MDT
Subject: Open records requests for voted ballots
As we discussed on the conduct of elections call this morning, our office has received several questions regarding open records requests for voted ballots that have been received over the past few days. Although our office has previously provided guidance that voted ballots are not records subject to inspection under CORA and we have serious concerns about the potential for adverse effect on the confidence in elections and finality in the outcome, we are unable to identify an exception in Title 1 generally protecting ballots from public inspection.
Under the Colorado Open Records Act, it is the responsibility of the custodian of a record to decide whether it is subject to public inspection. Because county clerks are the custodian of ballots, we recommend you consult with your county attorney in determining how best to respond to requests to inspect ballots given that these records may be in storage and we are currently conducting the primary election. If you or your county attorney has identified some additional legal basis for denying access to these records, we would ask that you share the information with our office and other counties. If you allow inspection of the ballots, keep in mind that you cannot disclose any ballot with information that would identify the voter, or any other confidential voter information. This would include, for example, a provisional ballot in the affidavit envelope, or a rejected mail-in ballot in its envelope.