Aspen seeks Colorado Supreme Court decision to block election transparency

Yesterday, 11/11/11 triggered a numerologists millenial festival, but for seekers of fully verifiable and adequately overseen elections with unrestricted citizen involvement, it was a cloudy day in Colorado. The City of Aspen, usually considered to be a bastion of progressive public policy, revealed in a press release that it had filed a petition for a writ of certiorari to the Colorado Supreme Court to attempt to overturn an illuminating Court of Appeals ruling that ballots are public records and accessible through open records laws, and that digital copies of ballots need not be treated the same as original paper ballots under law.  Aspen argues that ballots are to remain "secret".  In practice that means accessible to a few rather than to all.

Aspen's filing linked below is full of references to the presumed "secret ballot" that isn't actually provided for in Colorado's laws.  What we see in Colorado's constitution is "secrecy in voting" and a careful definition of an anonymous ballot - but nothing to suggest that these anonymous ballots must remain secret, or that they contain secrets that need to be protected. What Aspen's legal team does point to is an outdated requirement for destruction of municipal ballots after being locked only six months in the ballot box, a provision that also previously pertained to the much more numerous ballots in county, congressional and statewide elections. When the Colorado constitution replaced ballot secrecy with ballot anonymity in 1947,  the destruction requirement for county ballots was replaced with a preservation requirement for 25 months- but this change was not echoed in the municipal law for reasons that Aspen would like to pretend are significant.

Adding insult to injury, Aspen is attempting to insulate itself from liability for the costs of the plaintiff's legal fees that the city is legally responsible for in case of a loss in its defense of an open records case where it has been shown to have illegally refused access to public records. It appears that Aspen will attempt to argue that even after rejecting numererous reasonable and sensibly constrained open records requests for ballots and ballot scans, that it was simply responsibly seeking the advice of the court in how to interpret the statutes - while in fact it was emphatically arguing that the plaintiff's original case had no merit and was vexatious and worthy only of dismissal.  Now that the Court of Appeals has ruled unanimously with an extensive opinion concerning the merits of the plaintiff's argument, the presumptuous early tactic of the city does not lend any credibility to its efforts.  The City of Aspen deserves no credit for taking any kind of high road in this controversy. One hopes that the Supreme Court will recognize this in the historyand the details of the city's filing.

Considerable sums of money will be needed in advance to pursue the pro-bono argument against Aspen, and I am here making the preliminary ask for donations to the cause. Meanwhile our attention turns to the legislature where there will certainly be an effort taken by the Colorado County Clerks Association to change the law, as interpreted by the Court of Appeals, to make any Supreme Court decision superfluous.  While there is only one city arguing like Aspen is, and there are only 64 county clerks, they are ultra powerful as lobbyists, and if that wasn't enough, they hire paid lobbyists in addition.  That leaves citizens themselves to protect their interests via their right to provide voluntary citizen testimony at the legislature.  We will also look for help from the few reasonably well-funded organizations that might take up the side opposing the clerks in this fight. Any person or organization with any interest at all is asked to contact me, Harvie Branscomb at 970-9631369 to express an interest.

What follows are two news reports from Aspen's papers, and my letter to editor printed today concerning the secret methods used by the city attorneys to bolster the positioning of their case in place of open public policy discussions.

Aspen files to appeal ballot-images ruling

http://www.aspentimes.com/article/20111112/NEWS/111119955/1077

Public records in secret sessions (letter to editor by Harvie Branscomb)
Dear Editor: Monday night the Aspen City Council met in executive (secret) session to discuss in part two Colorado Open Records Act requests seeking to inspect the 2011 ballots. One of the requests is written by me. I delivered mine to a meeting of the...
11/12/2011 12:07am
http://www.aspentimes.com/article/20111112/LETTER/111119962/1020

Aspen Daily News report 11/12/2011:


City files appeal to high court over ballot ruling
by Chad Abraham, Aspen Daily News Staff Writer
Saturday, November 12, 2011
http://www.aspendailynews.com/section/home/150132



Here are recent references to Aspen City Council discussions of this matter that took place in public and were recorded:

Aspen City Council meeting October 24, 2011
http://aspenpitkin.granicus.com/MediaPlayer.php?view_id=3&clip_id=545

At 27:15 Marilyn Marks makes a 3 minute comment including a query about the process by which Aspen has or will decide to appeal the Marks v. Koch case..At 36:00 the discussion resumes. The relevant portion about transparency ends at 38:45 but the mayor continues to discuss elections until 44:00
Aspen City Council work session Nov. 2, 2011:
See the video at 3:23:00

http://aspenpitkin.granicus.com/MediaPlayer.php?view_id=3&clip_id=553

Aspen Election Commission Meetings:
Meeting Nov. 1, 2011 (expected to be streamed but approximately first 45 minutes failed - the following link is of the entire meeting)
Election Commission Special Meeting 11/1/11 
(as of 11/12/2011 the above link did not work - please contact grassrootstv.org about it)

Meeting Nov. 9, 2011 (probably not video recorded for public real time streaming- a recording has been requested of the Election Commission)

Email from Election Commissioner Ward Hauenstein:
Greeting all,

I invite you all to the Election Commission meeting November 9, 2011 at 4pm in the Sister Cities room.

In strict conformity to the state of Colorado Open Meetings Laws I have not included the other two members of the Election Commission in this email. I ask the city attorney or some member of the city council to forward this email to them.There are currently two items for consideration.

Item #1: Two pending CORA request made to the Election Commission for viewing paper ballots of the 2011 election

Item #2: Update on the Election Commission decision to seek independent council on issues discussed at the last Election Commission meeting of November 1, 2001.
Item #1
The two pending CORA requests of the Election Commission need replies from the body that it was requested from. At this meeting the Election Commission will discuss the CORA requests with due consideration to the following:

• What is the current law of the land in light of the Appeals Court ruling of September 29, 2011 in Koch versus Marks

• What is the scope of the stay – 2009 tiff images or more extensive

• Does the Appeals Court ruling applies to paper ballots or just tiff images
The city of Aspen attorney’s opinion is that the ruling applies to tiff image only. John and Jim correct us all if this is not your opinion. Mick has made it clear to me that his opinion is that the ruling applies to tiff images only. Three counties, including Pitkin, have allowed CORA requests of paper ballots within the past year. In my reading of the opinion I believe the ruling applies to paper and tiff images.
Item #2
The Election Commission voted 2-1 in favor of seeking to retain independent council for opinions on questions that are in substantial doubt. The Election Commission needs to follow the law. The Election Commission needs to perform the duties assigned it by the City of Aspen Charter and the State of Colorado. Independent council has been engaged. A request for funding has been made of the city of Aspen.

I extend the invitation to all parties with an opinion on the issues listed above. My personal belief is that free and open discussion of the issues serves democracy best. Diversity is welcome.
With Respect,
Ward Hauenstein

FYI, this is how the county is responding to similar records requests:

County Clerk to Comply with Ballot Review Request

Tuesday, October 18, 2011 (265 reads)
Pitkin County Clerk and Recorder Janice K. Vos Caudill announced today that she will grant Marilyn Marks’ request under the Colorado Open Records Act (“CORA”) to inspect five to ten anonymous voted ballots cast in the 2010 General Election... (continued)
http://aspenpitkin.com/Whats-New-/Press-Releases/newsid378/346/


Aspen's press release:
PRESS RELEASE
City of Aspen Files Appeal to Supreme Court in Marks Lawsuit
Contact: Jim True, City Special Counsel; 970-920-5108 or jim.true@ci.aspen.co.us ; John Worcester, City Attorney; 970-920-5055 or john.worcester@ci.aspen.co.us


Aspen, Colorado – November 11, 2011 – The City of Aspen has filed a Petition for Writ of Certiorari with the Colorado Supreme Court in the Marks v. Koch case. At issue in the case, which was originally filed in 2009 by Marilyn Marks, is the right of citizens to expect that their cast ballots will remain forever secret following an election. The City maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain secret.


The case is not about election transparency. The 2009 municipal election was one of the most transparent elections in City and state history. The case involves the sanctity of the secret ballot. The City believes that the Court of Appeals was in error when it held that the Colorado Constitution and state law do not protect the secrecy of ballots. For more than a century, laws in all 50 states require elections to be held by secret ballot. Because the decision of the Court of Appeals would have important ramifications for all future elections if allowed to stand, the City believes that it is important to have the Supreme Court review the lower court’s decision.


The plaintiff, Marilyn Marks, now has 10 days to file an Opposition Brief and the City will have an additional 5 days to file a Reply Brief. The Supreme Court has complete discretion in deciding whether it will grant the request for appeal. It may not be until 2012 that the City gets an answer.


In the meantime, the Appellate Court’s decision will be stayed and all cast ballots from the May 2009 election will remain locked up.
The Petition to the Supreme Court is online at http://bit.ly/tf9JSQ
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