KDNK Reports on SOS Memo Looking to Deny Inspection of Ballots

This morning on KDNK in Carbondale, Conrad Wilson reported the story of my CORA request for voted ballots in several counties and the SOS position that there is no exemption for voted ballots in CORA. http://www.kdnk.org/article.cfm?mode=detail&id=1280241798407)

In his interview, he talked with Rich Coolidge who stated that SOS office did not know what advice to give, because there is no exemption for voted ballots, and reportedly they are concerned about “protecting voter identity.”
Note my correspondence with Delta County on the matter. Read from the bottom up, after Delta county denied access on the grounds that inspecting ballots would cause “injury to the public interest.”
From: Marilyn R Marks

Sent: Tuesday, July 27, 2010 9:49 AM

To: 'Christine Knight'

Cc: 'Ann Eddins'; 'Brad Kolman'

Subject: RE: CORA request for Nov 2008 voted ballots and SOS office comments

Christine,

Thank you for your reply. I will look forward to hearing from you again next week on this subject. Of course, I remain available for any informal discussions in the meantime.

As for your question on my purpose in this request, I happily answer that question. As you note, my reasons are not relevant to your determination, but I am actually pleased to share them.

My primary goal is to reinforce the principle that Coloradans have the constitutional right to alter their government at the ballot box and control their elections. The elections are the people’s elections---not the government’s elections. It has been easy for most of us to lose sight of that as elections and tabulation equipment have become more complex and centralized. I hope to make an impact on climbing back up the slippery slope to reinforce Colorado citizens’ rights and responsibilities to control and verify our elections.

Why a CORA request in Delta County? As I hope I mentioned, I have made requests in a number of counties, including El Paso, Pitkin, Gunnison, Weld, and Denver for different elections and different style ballots. All with the intent of reinforcing this concept in Colorado. Recognizing that the SOS is not giving state-wide advice, the policy may vary county to county. I believe that it is important to have a consistent transparent policy in all counties. And to have election transparency in Colorado which is not inferior to other states.
Why should Michigan voters be able to verify their election of their U.S Senator or House member and Coloradans not be able to verify the election of the Colorado U.S. Legislators serving alongside them? This is the principle I am attempting to address and reinforce. It is all about self-governance, transparency and the citizens’ responsibilities to oversee our elections.

It is certainly not intended to question the veracity of any Delta County election. I have no reason to have even the smallest question about the accuracy of the count. This is all about reinforcing a principle through a documented activity.



The German Supreme Court recently opined on the philosophy of citizens rights to self-governance at the ballot box, where they articulated these fundamental rights better than I can. An English translation of their opinion is provided here : http://www.bbvforums.org/forums/messages/1954/79633.html



A secondary goal is more immediate. With upcoming elections which may have contentious issues and close counts, I want to establish the procedures for public inspection of voted ballots in this year’s elections before the general election is held. It seems important to establish those procedures before the heat of election night and the recount period.
I hope this helps. Please feel free to call or write for clarification.

Marilyn Marks

From: Christine Knight [mailto:cknight@deltacounty.com]

Sent: Tuesday, July 27, 2010 8:59 AM

To: Marilyn R Marks

Cc: Ann Eddins; Brad Kolman

Subject: RE: CORA request for Nov 2008 voted ballots and SOS office comments

Ms. Marks,
Thank you for your reply and comments in response to my letter to you. We are in the process of researching and making further inquiry into your response, and will get back to you sometime next week.

Although it’s clear from your request that your purpose is not to obtain information about individual voters, I am curious as to what your purpose actually is? That being asked, you are certainly under no obligation to answer, as your purpose is not relevant to a CORA request (the records are either available under the law or they’re not).

Christine

Christine L. Knight

Assistant County Attorney

Delta County

320 W. 5th Street

Delta, CO 81416

(970) 874-2090

Fax: (970) 874-2094

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From: Marilyn R Marks [mailto:marilyn@aspenoffice.com]

Sent: Tuesday, July 27, 2010 8:37 AM

To: Christine Knight

Cc: Jan Speas; Ann Eddins

Subject: CORA request for Nov 2008 voted ballots and SOS office comments



Ms. Knight,

This morning on KDNK in Carbondale, Conrad Wilson reported the story of my CORA request for voted ballots in several counties and the SOS position that there is no exemption for voted ballots in CORA..
In his interview, he talked with Rich Coolidge who stated that SOS office did not know what advice to give, because there is no exemption for voted ballots, and reportedly they are concerned about “protecting voter identity.” I still fail to see how legally voted ballots would be identifiable by voter other than some rare exceptions. However, if there are some limited ballots which you feel may be identifiable by voter, I am not requesting that you supply those in response to my CORA request.

If it is helpful for me to formally modify my CORA request to exclude identifiable ballots, I will be happy to do so. Please let me know your preference.

Please let me know whether a further response to my 7.15.10 CORA request for voted ballots will be forthcoming, or whether the clerk’s position remains that my CORA request is denied on the theory that there is injury to the public interest, although that injury has not be specified.

I am happy to talk with you to attempt to find a mutually satisfactory solution.


Marilyn Marks

From: Marilyn R Marks

Sent: Friday, July 23, 2010 8:01 PM

To: 'cknight@deltacounty.com'

Cc: 'jspeas@deltacounty.com'; 'Ann Eddins'

Subject: P.S. to earlier email re: CORA request for Nov 2008 voted ballots and "substantial injury to public interest"



Ms. Knight,



In my previous correspondence I expressed my concern about your position that inspection of ballots creates substantial injury to the public interest. I should have commented that my understanding of case law is that the concept that the “substantial injury to the public interest” exception is a “catch-all exemption” that is “to be used only in those extraordinary situations which the General Assembly could not have identified in advance.” Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1156 (Colo. App. 1998).



CORA therefore certainly allows access to “election records,” which are defined in a way that includes ballots, unless there are certain specific identifying pieces of info on the election records – none of which are present on legally voted ballots. The legislature certainly could have identified this situation in advance, when election records are specifically covered by the actual text of CORA. In fact, the members of the legislature were all elected with “ballots, ” and the role of ballots in the election process is no mystery that was unforeseeable.



Additionally, in the debate of SB 083 in 2007, the Senate both foresaw and debated ballots as documents that might be requested under CORA and chose NOT to exempt them by passing an amendment to a pending bill which would have sought to exempt them.



It is my understanding that to effectively utilize the “catch-all exemption” to deny public record inspection, “[t]he custodian of records has the burden to prove an extraordinary situation and that the information revealed would do substantial injury to the public.” Bodelson v. Denver Pub. Co., 5 P.3d 373, 377 (Colo. App. 2000).



I failed to read any such extraordinary situation in your response to my request to inspect Delta County’s voted ballots. If you believe there is such an extraordinary situation that justifies such a position, please be very specific in your response.



Thank you for your attention in this matter. I will be happy to discuss it with you at any time.

Marilyn Marks

Aspen, CO



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