It seems to be seen to benefit Aspen that this story is always about Marilyn Marks and preferably Marilyn alone. Although this article contains a remarkably high degree of accuracy in detail, and does mention my involvement, it unfortunately overlooks the real meanings behind the reported facts. My annotation will attempt to fill in for some ommissions (Harvie Branscomb).
In a ruling issued Tuesday, Pitkin County District Court Judge Gail Nichols sided with the city on issues related to the May 2011 municipal election, which featured races for mayor and City Council.
In November, Marks — a 2009 mayoral candidate who has prevailed in a lawsuit against the city over the right to inspect ballot images from that election — and fellow activist Harvie Branscomb, of El Jebel, submitted a Colorado Open Records Act request to the Aspen Election Commission to allow them access to inspect the actual paper ballots from the 2011 election.
The article could have said "and separately another activist Harvie Branscomb." Andre Salvail chose "fellow" perhaps as in "fellow traveller" etc. - likely a deprecating term rather than neutral.
Harvie applied first for inspection, Aspen litigated, and then Marilyn Marks joined the existing case weeks afterwards with a subsequent request. Elizabeth Milias also applied for and retracted a request.
But Aspen City Clerk Kathryn Koch, through the City Attorney's Office, denied the requests on the grounds that compliance would violate state and city law. The city has maintained that Koch, not the Election Commission, is the custodian of the records.
When Marks and Branscomb threatened to sue, Koch and the city filed a motion for summary judgment with the District Court, saying the ballots were exempt from public inspection based on open-records regulations.
"When Marks and Branscomb threatened to sue" is an imaginative but misleading stretch. Harvie's original request had a simple boilerplate sentence retaining the right to sue that has been described in the press as if he (I) was planning to sue, which has never been true. It was the City's choice to overreact to the simple statement.
The City Clerk responded as if she had been asked for the records, when in fact it was the possibly (presumably) independent Election Commission that was asked, and for good reason. The Election Commission arguably had the right to provide the records. To describe this technically correctly, as Salvail has done, is to miss the main point.
A simpler and more correct description follows: Harvie Branscomb applied deliberately to the Election Commission for inspection, not to the City Clerk. However, the Clerk (not the Election Commission) then sued Harvie in an attempt to block Harvie's inspection. The case is known as "Koch v. Branscomb." Even before asking the court for advice, the Clerk's Office denied Harvie's request on behalf of a purportedly independent Election Commission even though not asked. A reason to sue Harvie first is to avoid having to pay Harvie's court costs if Harvie were to sue for fulfillment of the request. Suing is the only remedy for a denial- there is no administrative oversight for open records requests in Colorado. It is also of note that probably everyone agrees that these 2011 ballots are uncontroversial in content.
On that issue, Nichols ruled that the absence of the commission, which includes Koch, as a party in the city's request for summary judgment “will not impair or impede the commission's interest because the commission has no interest” in whether the ballots are released for inspection.
If the commission has no such interest, then it has no real independent power. The real story here is that the Election Commission is powerless to stand up to the City Clerk or City Council. There is no evidence of this glaring weakness in the article.
Nichols based her conclusions partly on the fact that the commission discussed the matter and decided that “based on the advice of independent counsel, they had no authority to act” with regard to the release of the ballots. She also wrote that the commission “chose not to intervene in this matter despite having knowledge of the pending litigation.”
The effort by the Election Commission to obtain independent counsel was impeded by the City at every turn. The advice given was curtailed in time, made problematic through lack of funding, and to the outside observer not particularly aware of all the laws and issues at hand, yet it is now being used as a basis for the decision by the court- another absurdity to add to many in the past.
“Accordingly, the court finds the commission is not a necessary or indispensable party,” Nichols wrote in her order. “Marks' motion to dismiss will be denied.”
In fact, the biggest untold story is this: the Aspen Election Commission is entirely dispensable, and may henceforth be dispensed with as it was already after the 2009 election.
As for the city's request for summary judgment, Nichols wrote that the state law at the time of Marks' motion contains no provision for making ballots available for public disclosure or inspection.
“If anything, the statute expresses a policy against allowing public inspection of paper ballots,” she stated. “The court recognizes that (state law) does not expressly prohibit inspection, but its terms, read as a whole, assume and strongly suggest that the inspection of ballots is prohibited.”
The state law in question is antique language applied only for municipal elections that dates back to the time when ballots were purposefully rendered identifiable and would cause immediate harm if released to the public. The legislature has simply not updated this law to conform with new law for all other elections written in the 1970s. This is a crucial fact that ought to have been reported to understand the full story.
Reached for comment Wednesday, Marks said the court's decision was “wrongly decided,” in her opinion.
Reporter Salvail adds the unnecessary "in her opinion" to warn any readers who might mistakenly conclude Marks is correct.
“I assume that the city will agree with that analysis, as well, as they had already concluded that the 2011 case was moot, given the clarifying 2012 (state legislation) placing more restrictions on ballots but reaffirming they are public records,” she said in a prepared statement. “As the 2012 Legislature affirmed, maintaining ballots as open records is a matter of statewide concern, as it has been since 1967 when Colorado's open-records law was passed.”
In Marks' view, the Aspen City Council in 2011 — just prior to the May municipal election — modified the city election code against her and others' objections, “to attempt to slam shut the ballot box to any verification of the elections by the public or press. This is the flawed local law they presented to the court and the court assumed to be valid.”
In 2011 the City Council modified election code that for the most part was advised and complimented by Marks and others including myself. The one portion that Marks and I and others considered objectionable was the decision to copy verbatim the state's obviously out of date provision for destruction of ballots by fire, shredding or burial, etc.- the visibly obsolete foundation for Aspen's legal opinion that ballots ought not be considered public records.
Marks continued, “It appears that the court failed to recognize that the city charter incorporates Colorado's Open Record Act, and in any event there is new state law that trumps any claim by Aspen that (ballots) are exempt from Colorado's open-records laws.”
She said she doubts that the city will continue to claim that Nichols' decision on the 2011 ballots is correct, given this year's changes to state law regarding public access to ballots and the Supreme Court's recent refusal to weigh the 2009 case.
In July, the Colorado Supreme Court rejected the city of Aspen's petition for a rehearing in the 2009 ballot case initiated by Marks. The court already had reversed its decision to hear the case of Marks vs. Koch, allowing a Court of Appeals decision in Marks' favor to stand.
The city then filed a petition to ask the state Supreme Court to reconsider its decision not to take up the case; the high court declined.
Should the city continue to put forward that the 2011 ballots cannot be accessed, Marks said, “We will of course be required to file motions with the court for reconsideration or appeal. It is critical that Aspen's elections be just as transparent as every town, city, school district, fire district or county in the state.”
In fact, Aspen has taken a maximally anti-transparency stance since I and Marilyn Marks asked to be given a copy of the CD containing ballot scans made for the purpose by the election contractor in May 2009 . Before that election, officials had publicly promised that everyone would be allowed to “count the votes for themselves.” That promise has gone unfulfilled after three years and hundreds of thousands of dollars in real legal expenses as well as two or three times that in uncompensated time on the part of concerned citizens.
Marks also brought up the issue of attorneys' fees.
“One of the most troublesome aspects of the city's position is their attempt to claim attorney's fees against Harvie Branscomb and me for merely filing a public-records request that reflected the state of the law for election verification,” Marks said. “Such threats have a chilling effect on the press and average citizens when they must fear court action from a city with an unlimited legal budget if they seek to exercise their rights to public records.”
This is a key point that the article includes but belittles with placement at the end. Aspen would like to frighten citizens and others into silence by asking the court to replenish the city's wastefully spent legal budget from the pockets of inquiring citizens. Just the act of asking for the compensation has inevitably generated the desired result: a chilling fear.
City Attorney Jim True said Marks recently made a request under the new state law to examine the 2011 ballots.
“We were prepared to go through the process to allow that inspection, and she objected to some of our efforts, so we just haven't had a meeting yet to start the process,” he said. “We're not going to deny her the right to inspect the 2011 ballots under the new law.”
I'm not clear this is completely true. Aspen attempted to begin a process to inspect 2009 ballots that was objected to on the grounds of potentially failing to preserve the organization of the ballots.
annotated copy reproduced under fair use doctrine: