“The Aspen City Council has directed staff to appeal the Marks v. Koch case to the Colorado Supreme Court,” says a statement released Tuesday from the City Attorney's Office. “At issue in the lawsuit, which was originally filed in 2009, is the right of citizens to expect that their cast ballots will remain secret.”
The city maintains that it is residents' constitutional right to vote their consciences knowing that their ballots will remain “forever secret,” the prepared statement says. The lawsuit against City Clerk Kathryn Koch, who declined Marks' request to view ballot images from the spring election that Marks lost, states that the Colorado Open Records Act and other state laws allow public ballot inspection as long as it is not possible to discern a voter's identity.
“This case is not about election transparency,” the city's statement reads. “The 2009 municipal election was one of the most transparent elections in city and state history. This case involves the sanctity of the secret ballot.”
According to the city, the Court of Appeals erred when it held that the Colorado Constitution does not protect the secrecy of ballots. Because the appellate court decision will have statewide ramifications for future elections, the city has deemed it important to ask the State Supreme Court to review the ruling.
Officially, the city has until Nov. 14 to ask the higher court to review the case. In the meantime, the appellate court's decision will be put on hold, meaning all ballots and ballot images from the May 2009 election will remain inaccessible to Marks or anyone else.
Reached by e-mail Tuesday, Marks described as “ludicrous” the city's argument about protecting voters' rights by keeping ballots secret.
“My first impressions of the city's decision and announcement is to shake my head in disbelief that City Council believes that their constituents are going to be fooled by their absurdly illogical and dishonest arguments,” Marks said. “The press release about the right to ‘secret ballots' is preposterous. The city seems to be arguing that in Aspen, officials may strip voters of their constitutional right to [examine] an anonymous, untraceable ballot and replace that hard-won human right with a ballot that is meant to be a secret — a secret that Big Brother is supposed to keep.”
She added, “I hope [voters] will understand that the city is claiming that officials have the ‘right' to know how we vote so long as they keep the ‘secret' among themselves. The argument smacks of not-so-subtle voter intimidation.”
According to Marks, voters should be “up in arms,” especially in Aspen, where local government plays a huge role in the economy, providing housing, jobs, contracts and permits.
“City Council members know quite well that the Colorado Constitution guarantees anonymous ballots, which cannot be traced to the voter,” she said. “They like to fudge on the terminology (‘secret' versus ‘anonymous') in order to intimidate voters and suggest that the ballots are traceable and the voters choices kept secret among those officials who get to look at them and determine how people voted.
“No one, particularly government officials, can know how we vote in an election that is legally conducted under our constitution,” she continued. “If the council cannot show us the ballots because the ballots are identifiable, they are acknowledging that they conducted an unconstitutional election.”
Marks said that if government officials who run elections can do so without public accountability and verifiability of the election, “What's to keep them from announcing anyone they wish as the winner?”
She added that council members should consider reviewing the ballots from the Pitkin County election in November 2010, which included races for U.S. Senate, Congress, governor and other elected posts.
“Those ballots are open for anyone to see,” she said. “They are public records, right across the street from City Hall. Can anyone trace them back to the voters? No, of course not. They are anonymous pieces of paper. So, why should the city of Aspen need to keep their ballots secret?”
A three-judge appellate panel issued its decision last Thursday, overturning 9th District Court Judge James Boyd's ruling in March 2010 that upheld the city's decision to withhold the ballot images from public scrutiny.