Court sides with city of Aspen on ballot issue: Aspen Times

Andre Salvail

The Aspen Times 8/2/2012

(annotation in bold italics by Harvie Branscomb, 8/2/2012)

ASPEN — The saga involving elections activist Marilyn Marks and the city of Aspen over the right to inspect voter ballots continues.

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.

Marks then moved to dismiss the city's request for summary judgment on the grounds that the commission should have been joined in the matter.

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.

CItizen Center sues Colorado Secretary of State and 6 county clerks

Read the actual court complaint as filed here: CitizenCenter_complaint_as_a_pdf

A new non-profit in Colorado sues SOS and 6 clerks over unconstitutional ballot traceability. Supportive documentation is located here: http://bit.ly/citizencentersuit

I learned only at the last moment of this project by The Citizen Center http://thecitizencenter.org (a new non-profit organized recently by Marilyn Marks) to bring  a suit in federal court against 6 Colorado counties' clerk and recorders as well as the Secretary of State and saw this specific information this morning. 

The counties include Eagle county, the county where I live and often serve as Canvass Board member. A number of county clerks (but not all) included in the suit have published specific details of the traceability of ballots apparently for the purpose of supporting arguments that ballots should be kept private to election officials and not made available to the public. An approach that acknowledges traceability and fails to achieve anonymity of ballots appears to be inconsistent with two constitutions. That is I believe the basis of the argument this suit will make.

Ballot transparency a statewide debate; poll favors transparency

Ballot transparency a statewide debate

Issue might wind up before Colorado Legislature

Janet Urquhart
The Aspen Times,  Aspen, CO Colorado

ASPEN — A candidate's request to inspect ballots cast in Aspen's 2009 municipal election has set in motion similar efforts around Colorado. The end result might be new rules that govern the review of ballots or that withhold them from public inspection altogether.


Meanwhile, Aspen resident and 2009 mayoral candidate Marilyn Marks is expected to review on Tuesday 100 ballots cast in Pitkin County's Nov. 1 election. Rather than simply eye the ballots, though, Marks has suggested that county Clerk and Recorder Janice Vos Caudill and a group of election officials look over 100 to 200 ballots with Marks and discuss whether any of them are “identifiable.”

The potential to link a voter to a particular ballot via various election information that is available to the public through the Colorado Open Records Act (CORA) has emerged as a concern among county clerks across the state as they respond to ballot requests from Marks and others.

Go with the constitution: a letter to editor by Harvie Branscomb

http://www.aspendailynews.com/section/letter-editor/150357

Go with the constitution

Friday, November 25, 2011

Carolyn Sackariason’s article, “Litigious days at City Hall” (Aspen Daily News, 11/21/11), includes a mystifying yet illuminating sentence: “The city, however, contends that releasing the ballots, even if they’re kept anonymous, will substantially injure the public interest because voters could potentially be identified.”

This sentence captures the essence of an epic controversy over who should see ballots. Aspen has withheld the prepared CD of the 2009 ballot scans that could have accompanied disks I and others received of the vote patterns and GrassRootsTV’s recording of ballot scans projected at City Hall on election night.

The sentence reveals the prevailing misunderstanding about why democracy needs anonymity and what ought to be secret in our voting method that is quirkily, but inaccurately, known as secret ballot. It isn’t what’s on the ballot that’s supposed to be secret — it’s the identity of the person who voted it. Our state constitution calls it “secrecy in voting,” never mentions a secret ballot, and specifically requires that no one can know who voted a particular ballot. That’s anonymity. It is a beautiful thing that Aspen may have forgotten.

Why insist on secrecy but dismiss anonymity?

http://www.aspentimes.com/article/20111124/COLUMN/111129937/1021

Maurice Emmer and Harvie Branscomb: Guest opinion

Why insist on secrecy but dismiss anonymity?

November, 23 2011
Maurice Emmer and Harvie Branscomb
Special to The Aspen Times
Aspen, CO Colorado

We both write repeatedly about the importance of election transparency. We present facts. We don't make things up. Stories about revealing ballot “secrets” often sound like scary tales told to children. They are designed to frighten, not inform. Jack Johnson's scary story recently published in another paper might trigger your instinct to fight, but that's what fiction and political propaganda are intended to do.

Johnson's column, and recent announcements by the city of Aspen, misconstrue election and open-records law as well as misrepresent the Marks v. Koch case and the Court of Appeals' unanimous opinion in favor of ballot transparency. As untrue assertions have become Aspen's norm, here we try to separate fact from fiction.

A little history, not made up:

Pitkin County Press release differs from Aspen Times article

 In the previous blog posting I annotated the Aspen Times article (http://aspenelectionreview.blogspot.com/2011/11/marks-to-again-view-pitkin-county.html) that seems based upon the contents of the following Pitkin County press release.  That article promoted confusions that I felt the needed to be pointed out, such as the use of the misleading terms "anonymity in voting" and "secret ballot". 

The Colorado constitution refers to a different combination of terms: "secrecy in voting" and anonymous ballots - and there is a big difference. Looking at the final paragraph of the Pitkin County press release below, one can see that the Pitkin County Clerk does understand this difference and is careful to use the correct terminology.




However, the Pitkin County Clerk also seems to have concluded that transparency and anonymity are essentially in conflict and that both may not be achievable simultaneously.  She has also used an oxymoron when she writes "anonymity of their ballots" - since once rendered anonymous,  personalization of the ballot does not exist. So I find myself glaring at the irony of the use of the word "their" next to the word "ballots".  

Here is a better wording I would prefer to see used in place of what is in the release: "I will work to assure that each Pitkin County individual has the ability to exercise his or her right to vote with confidence in the anonymity of ballots cast in this county and the untraceability of individual votes on those ballots."

The two concepts that are irrevocably in conflict are "secrecy" and "transparency" of ballots.  

On the other hand, anonymity and transparency of ballots are perfect compliments to each other.  The author of the press release may have failed to realize this. Both the press release and the article contain no reference to the benefits to be obtained from transparency of ballots.   I hope the Pitkin County Clerk and Recorder will come to understand these important principles and will then somehow help convey her understanding to fellow clerks. I have highlighted the paragraph in the text shown below that was not reflected in the Aspen Times article. I continue to have a reservations about the conclusion that the judicial process produced "partial answers on an ad-hoc basis."

The Appeals Court decision, far from ad-hoc, allows the clerks to have discretion to withhold identifiable ballots. Judge Gonzales (12^th JD) in the Gessler v Myers case in August also  wrote in separate but consistent opinion,“ An election record, including a voted ballot, may be disclosed as long as the identity of the voter is not disclosed."

This interpretation is not inconsistent with Colo. Const. art. VII, § 8 that states that a ballot cannot “be

marked in any way whereby the ballot can be identified as the ballot of the person casting it.”

Clerk Vos Caudill seems to see complexity where others see relative clarity and simplicity. If Vos Caudill can identify the voter from looking at the ballot, then she shouldn’t disclose the ballot in an identifiable form. But if voter markings explain that ability to identify, she should be considering referring those ballots to law enforcement.  Markings rendering a ballot identifiable are illegal.  

Sometimes the way ballots are printed focuses on a very small number of eligible voters in a split precinct. Low turnout can create the ability to identify the voter associated with a unique ballot style. That problem is easily predicted and such a unique ballot can be withheld from public inspection until the small-split-precinct matter is addressed systematically. If an election official cannot identify the voter from looking at the ballot, the ballot should be eligible for inspection by the public.

Harvie Branscomb 11/20/2011 - the Pitkin County release follows the break:

Marks to again view Pitkin County ballots - a one-sidedly cautionary report on ballot access

Saturday, November 19, 2011

Marks to again view Pitkin County ballots

Inspection request modified to involve 100 ballots from latest election

Janet Urquhart
The Aspen Times
Aspen, CO Colorado

The Aspen Times

[The following news report includes substantial space given to discussing speculations about problems with public ballot access, and no space given to the potential benefits.  For that reason I have annotated the article here, in blue. Harvie Branscomb]   

ASPEN — Elections activist Marilyn Marks will have an opportunity to inspect 100 ballots cast in the Nov. 1 Pitkin County election and obtain digital copies of 25 of them.

The cost of labor and copies will run Marks about $117, estimated Pitkin County Clerk and Recorder Janice Vos Caudill.

Marks last week made an open-records request to view 605 ballots cast in the recent election — those that were selected for a required, post-election audit.

According to a press release issued by Vos Caudill on Friday, Marks offered to reduce the scope of her request, given time constraints and the volume of work at the clerk's office, and inspect just 100 of the 605 audited ballots. Twenty-five of the 100 ballots, of Marks' choosing, will be scanned and provided to her on a disc, Vos Caudill said.

The clerk, who was out of town on Friday, said she anticipates selecting the ballots to be viewed on Monday and laying them out for Marks' inspection on Tuesday.

This is the second time Marks will look at a sampling of county ballots; last month, she asked to see five to 10 ballots from the county's November 2010 election and was provided 10 to inspect in the clerk's office.

Marks, the Aspen resident embroiled in a legal battle with the city of Aspen and three other Colorado counties over the right to view election ballots, said her latest request to Pitkin County is intended to facilitate the establishment of policies and procedures for complying with such requests. Being able to view ballots cast in an election is a matter of election transparency, according to Marks.

The exercising of the CORA law is important because it demonstrates the lack of negative impact of the process of inspection to those who fear such negative impacts. In fact, there are many benefits to be obtained from public verification of elections including by occasional inspection of ballots under appropriate controls. Sadly not one of them is mentioned in this article, nor are these benefits often mentioned in other news reports.  It would appear that each records request in Aspen will be answered by an opportunity for the Clerk to advertise fears over misuse of the contents of ballots, rather than a celebration of the benefits of citizen oversight. This article simply reveals that Pitkin’s clerk is not particularly friendly to public oversight.

Can we keep a secret? Column by Jack Johnson annotated by Harvie Branscomb and Marilyn Marks

There are many misunderstandings projected by Jack Johnson’s column below.  Citizens are accustomed to being lied to or misled in the newspaper, but in this case, the misunderstandings are stacked upon a context of consistent misinformation put forth from a variety of sources that ought to be dependable and credible, but may not be. What is so aggravating about this column is that it comes at a time when people like me are trying to dissect the facts out of the usual mudslinging to propose legislation to implement what Colorado's constitution actually calls for – anonymous ballots.  I hope our legislators are reading Jack’s column not just with a grain of salt, but with a whole box of it.  

Black text is published text by Jack Johnson (former Pitkin County Commissioner, candidate for Aspen City Council, May 2009, as printed in a column in the Aspen Daily News). I have applied strikeout on the defective portions that I would not have included in the column, if I were writing it. (Harvie Branscomb)

Red text in brackets [] is by Marilyn Marks ( candidate for Mayor, May 2009)

Blue text in brackets [] is by Harvie Branscomb (Colorado Voter Group, Coloradans For Voting Integrity)

Can we keep a secret?

Aspen Daily News Staff Report - (wrong- this is actually a regular bi-weekly column by Jack Johnson)

Friday, November 18, 2011

Election law is complex. It is also important. Marks v. Koch seeks to overturn a century’s worth of election law and should be reviewed by the Colorado Supreme Court.

[The election law has not been overturned in any way. The Open Records Law, which has been in place for over 40 years and which allows ballots to be public records, has merely been upheld. It is modeled after the same open records law that permitted the Bush/Gore ballots or the Coleman/Franken ballots to be reviewed by the press and public to reach their own conclusions.]     No elected or appointed official in Aspen invented Colorado election law or the secret ballot. They are only charged — for our benefit and upon our behalf — with interpreting and implementing it. Average citizens, the press and even loud-mouthed local public policy columnists all very much take the “secret ballot” for granted. We have forgotten, if we ever knew, how hard it was to win the right to such because much of the intellectual thought regarding election law and the right to a secret ballot was settled in the 19th century.

[Actually “secret” ballots were allowed until 1947, and Colorado ballots were traceable if an official peeked at the concealed ballot number on the voted ballot. Before 1947, three election officials with separate keys had to collaborate to open the ballot box. They could then remove ballots stuffed by ineligible voters or fraudulent officials by checking the identities of the ballots using the printed numbers. That’s not what we now (misleadingly) call the “secret ballot,” but there was a requirement to keep ballots as secret as possible using a glass ballot box and three keys. “Secrets” to be shared with and by election officials are subject to abuse. So, in 1947, the constitution was changed to guarantee that ballots are anonymous and the officials could obtain no “secrets” about how we vote. Believe it or not, that is what we now call the “secret ballot” or “Australian ballot.” The only “secret” is your privacy in the act of voting the anonymous ballot. The contents of ballots are no longer “secret” as that was a dangerous proposition. You can perhaps begin to understand how poor a term the phrase “secret ballot” is. It is utterly and essentially confusing. And that confusion is particularly rampant in Aspen. That’s a confusion that is not at all remedied by Jack’s confused opinion. ]

Lots of press coverage of the transparency issue in Colorado

By Katharhynn Heidelberg

Montrose Daily Press Senior Writer
http://www.montrosepress.com/news/article_dad52732-119d-11e1-bc5c-001cc4c03286.html

[copy of full version shown below]

As a dispute over whether images of ballots are subject to public records law heads to the state Supreme Court, the county clerks in Montrose and other counties are doing all they can to keep citizens' votes private. 

They do not accept a recent Court of Appeals ruling that requires Aspen's city clerk to release digital copies of ballots cast in a 2009 mayoral race there. 

The race's unsuccessful candidate, Marilyn Marks, challenged under the Colorado Open Records Act the Aspen city clerk's decision not to provide her with the copies. Aspen, which had cited municipal election code and the potential for "substantial injury to the public interest," won at the district court level. An appeals court agreed with Marks, however: constitutional voter-secrecy requirements only protect a voter's identity, not the content of the ballot.

Aspen's appeal to hide voted ballots from the public: action and reaction

This group of letters about ballot transparency from Nov. 12 to Nov. 16, 2011 starts with a letter by a national hero of election transparency, Mitch Trachtenberg. Mitch is one of the founders of the Humboldt County Election Transparency Project (humetp.mitchtrachtenberg.com).

In a cooperative effort between election officials and citizen activists, Humboldt County California has published ballot scans on-line for at least 5 elections with very positive results that include the discovery of a serious bug in Diebold GEMS software that had not been publicized. This is one of many examples of cases where citizen activism and oversight have improved elections practice.

See also Mitzi Rapkin's pitch on behalf of the City of Aspen for keeping ballots secret. This column lacks credibility in several areas and deserves an annotated version that will I hope be coming soon.

Aspen Daily News

Make ballot publication an election standard

Wednesday, November 16, 2011

Letter to Editor by Mitch Trachtenberg, Trinidad CA

http://www.aspendailynews.com/section/letter-editor/150185

"Secret ballot" - doesn't mean ballots are secret or contain secrets

 [bold and color are annotations by Harvie Branscomb 11/14/2011]

Wikipedia,  in its first sentence referring to "secret ballot" says:
"The secret ballot is a voting method in which a voter's choices in an election or a referendum are   anonymous."

It later goes on to explain, referring specifically to the USA and quoting the Merriam Webster disctionary:
In the United States the practice became known as the "Australian ballot", defined as having four parts:^[13]

1. an official ballot being printed at public expense,
2. on which the names of the nominated candidates of all parties and all proposals appear,
3. being distributed only at the polling place and
4. being marked in secret.

Note that this definition primarily refers to the ballot not as an object, but rather as a voting method, a process. Note that "being marked in secret" is the crucial characteristic of the ballot when referred to as a noun - not being "kept as a secret".

Colorado election officials predict legislative effort to block ballot transparency

Grand Junction Sentinel (11/14/2011) 

Voters' secret ballots may not be so secret after ruling  

[annotations in brackets and in red by Harvie Branscomb 11/14/2011] 
[ Ballots are not the property of individual voters.  Ballots containing any secrets at all are unconstitutional if the marks (printed or hand marked) on them are identifiable to an individual. Colorado law does not call for "secret ballots"... it calls for anonymous untraceable ballots.  Unfortunately this clerk and others are taking the position that they alone and their employees have the right to access and even hide such secrets. What they are saying is that they have not taken and are not taking the steps necessary to make the ballots anonymous. This is extremely troubling. ]

---

Sheila Reiner

---

By Charles Ashby
Monday, November 14, 2011

The state’s county clerks plan to ask the Colorado Legislature when it reconvenes in January to make ballots exempt from the Colorado Open Records Act.
[ The clerks attempted the same thing in 2007 and were quickly rebuffed by the Colorado Senate who removed that portion of an election "cleanup" bill before passage. The Colorado Press Association and citizens lobbied successfully to keep the status quo - so voted ballots remained accessible to the public under Colorado Open Records Law, with appropriate safeguards for maintenance of physical ballot integrity.]

The clerks say a Colorado Court of Appeals ruling in August that ballots are public records has turned election law on its head and could allow someone to find out how people voted, no matter how careful clerks are in guarding voter secrecy.  [ The Court of Appeals did not change any law - it merely clarified the appropriate interpretation, namely that ballots are public records and only those that are traceable to a voter must be withheld from the public. ]

But fixing the problem could be more problematic than most people think, Mesa County Clerk Sheila Reiner said.  Reiner and Jefferson County Clerk Pam Anderson, who are facing identical lawsuits demanding to make their ballots public, say doing so would identify individual voters and how they voted. As a result, they think ballots should be made exempt from open-records laws. [ If Reiner and Anderson are holding ballots that are provably traceable, they have conducted an unconstitutional election. If they are holding back these ballots, they may be interfering with our rights to know the weaknesses of our own elections.  Their procedures, and perhaps some less fortunate aspects of Colorado's law should be changed to make all elections compatible with the constitution. ]

“Secretary of State (Scott) Gessler is working on rules to accommodate this process, but we don’t believe the rules should be created because we don’t think the ballots should be made public record,” Reiner said. “What we’re asking the legislators for is a CORA exemption. This is a problem.”

Some people disagree, saying a balance can be struck that maintains election transparency without violating secrecy laws. [There is no "secrecy law" for ballots in Colorado. There is a requirement for "secrecy in voting to be maintained if voting devices are used. The constitutional provision for privacy of the vote is clear - make the ballots anonymous and then all of them are harmless public records that can provide the benefit of direct citizen oversight. Oversight by citizens and campaigns will help establish election credibility based on facts instead of the current public relations statements by clerks that typically rely upon a lack of complaints to demonstrate quality. Citizen verification becomes only more important when our election procedures have been almost entirely mechanized (electronic voting systems and electronic pollbooks) and heavily centralized ( extensive use, sometimes required, of mail-in ballots, the resulting heavy use of central counting, and also new voting methods employing early voting, vote centers and aggregated precincts). ]

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.

Secret meetings about public documents?

Two separate public bodies in Aspen held secret sessions to discuss my open records request- whew! The irony overwhelms me.
Last night the Aspen Election Commission met to discuss my records request to inspect Aspen’s 2011 ballots, that were voted in a conventional election (not IRV) under procedures that were extensively discussed and enacted prior to the election, and conducted by an experienced election manager from Pitkin County, who is also a lawyer and who understands well the importance of anonymity. I have reason to believe that these ballots are in fact anonymous for all practical purposes and would like to demonstrate the fact to counteract widespread myths that Aspen ballots might be traceable. I issued an open records request to inspect Aspen’s 2011 ballots, that are slated for immediate destruction according to the antiquated state law concerning municipal elections.

Response to: Colorado Secret Ballot Battle: Can You Collect Too Much Data?

 Harvie Branscomb responding to Doug Chapin and his blog posting here on the University of Minnesota Program for Excellence in Election Administration:

Colorado Secret Ballot Battle: Can You Collect Too Much Data?

I am an election quality activist living near Aspen who has followed this issue long before it became a topic for discussion around Aspen.  In  2007 Colorado Clerks and SOS forwarded an "election cleanup bill" that contained a change to open records law that would have prevented public access to voted ballots outside of a court order. I and other activists mounted a successful rejection of that portion of the bill after a lively debate on the Senate floor between a Democratic ex-clerk-and-recorder Senate President and a transparency loving Democratic Senate Majority Leader.  The ex-clerk-and-recorder argued that voted ballots are private records. After airing the issue in public, and some involvement by members of the Colorado Press Association, the problematic section of the bill was removed.

More feedback on Aspen's decision to pursue hidden ballots

Email from one of Aspen's Election Commissioners to the City Council regarding process of decision-making for Aspen's Supreme Court Appeal of Marks v. Koch, the ballot transparency case: (Date: Thu, 6 Oct 2011 08:29:05)

I am requesting that the CC, at their next meeting, or a special meeting, schedule time to hear public input relative to the appeal of the Mark vrs Koch case.  After the public has had an opportunity to express their thoughts the CC should properly vote to enter into executive session to resolve the matter.  There are energies being spent to challenge the process the CC followed to enter into executive session and decide to appeal the case.  At question is the legality of entering into executive session from a work session as opposed to a special session or a normal meeting.  The outcome may be the same.  The process would not be in question.

Aspen Council decides to ask Colorado Supreme Court for ballot secrecy

On October 4th, 2011 the City of Aspen provided the following press release indicating its intention to appeal the Colorado Court of Appeals ruling against Aspen Clerk Kathryn Koch to the Colorado Supreme Court.

PRESS RELEASE

City of Aspen to Appeal 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 – October 4, 2011 – The Aspen City Council has directed staff to appeal the Marks v. Koch case to the Colorado Supreme Court.  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 it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain forever secret.

This case is not about election transparency. 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.  The City believes that the Court of Appeals was in error when it held that the Colorado Constitution does not protect the secrecy of ballots.  Because the decision of the Court of Appeals will have statewide ramifications for all future elections, the City believes that it is important to ask the State Supreme Court to review the Court of Appeals’ decision and once again protect all citizens’ right to a secret ballot.  The City has until November 14, 2011 to ask the Supreme Court to review the case.  In the meantime, the Appellate Court’s decision will be stayed and all cast ballots from the May 2009 election will remain locked up.

###

Mitzi Rapkin

Community Relations Director

City of Aspen

970.920.5082 o

970.319.2791 c

www.aspenpitkin.com

  ----------------------------------------------------------------------------------------

City to appeal ballot ruling

by Curtis Wackerle, Aspen Daily News Staff Writer

Wednesday, October 5, 2011

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Will ask Supreme Court to reconsider Marks lawsuit from May ‘09 election

The city of Aspen has decided to appeal a recent ruling against it and in favor of a voting transparency activist to the Colorado Supreme Court.

The Colorado Court of Appeals last week ruled in favor of local resident Marilyn Marks in her suit against City Hall, which refused to release to Marks digital copies of ballots cast in the May 2009 election, in which she was a losing mayoral candidate. The city, in denying Marks’ Colorado Open Records Act (CORA) request to inspect the ballots,  claimed that doing so would violate state law guaranteeing secrecy in voting and would cause injury to the public interest.

Judge James Boyd of the 9th Judicial District ruled in the city’s favor in March 2010, granting a motion to dismiss on the city’s argument that releasing the ballot images would violate state law and the state Constitution. A three-judge panel of the appellate court reversed Boyd’s decision in a long-awaited opinion issued last week, ruling that ballots could be lawfully released, so long as there was nothing on them that could be used to identify an individual voter.

Court of Appeals decides in favor of Marilyn Marks

In a document dated Sept. 29, 2011 the Colorado Court of Appeals delivered a unanimous decision for the plaintiff, Marilyn Marks in the 2009 case against Aspen City Clerk Kathryn Koch who declined to provide a CD containing scans of Aspen Municipal Election ballots in response to a Colorado Open Records Act request. Judge James Boyd had dismissed the case shortly before it was to have been heard on a several month old motion by the City of Aspen.

The decision of the Court of Appeals is available here: Opinion.pdf

Media coverage of the decision is here:

Colorado Court of Appeals rules voted ballots should be public records

By Sara Burnett
The Denver Post

Posted: 09/29/2011 09:39:45 AM MDT

Updated: 09/29/2011 09:39:52 AM MDT

The Colorado Court of Appeals ruled today that electronic images of voted ballots should be open for public inspection, provided the voter's identity cannot be discerned from the ballot.

The ruling could have a major impact on Colorado election law, though today's decision likely is not the end of the fight.

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

Colorado SOS Seeks to "Protect" Ballots from Owners' Inspection

The Colorado SOS seems to have forgotten that elections and election records belong to the public!

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!



Marilyn Marks

Aspen, CO


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.