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
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.
Earlier this month, Secretary of State Scott Gessler said he would use the court's decision as guidance to begin the rulemaking process for how public reviews of voted ballots should be conducted. Gessler has said that public access to voted ballots will improve transparency, and therefore increase voter confidence in elections.
Colorado's county clerks association has maintained that ballots should be secret, and not subject to the Colorado Open Records Act. They have said they will fight efforts by Gessler or the public to review voted ballots, either in court or the General Assembly.
Today's ruling stems from a case filed in Pitkin County by election activist Marilyn Marks.
Marks was one of multiple candidates who ran for Aspen mayor in 2009. For the first time, Aspen used a computerized tabulation system to determine the winner through new "instant runoff voting." Voters ranked candidates, and the computer system used those rankings to determine a winner, avoiding the need for a second, runoff election.
Marks was among the losing candidates. About a week after the deadline to contest the election, the clerk disclosed that there had been a discrepancy between the results tallied from the paper ballots and the electronic images created by the new system, so that the winning candidate actually won by more votes than originally announced.
Marks submitted an open records requests to see the electronic images of ballots created by the new computerized system. When the clerk refused the request, Marks filed a lawsuit.
A district court judge dismissed the case, saying a provision in the Colorado constitution guaranteeing "secrecy in voting" prohibits the release of voted ballots.
Marks appealed to the Colorado Court of Appeals.
Today, a three-judge panel ruled that the phrase "secrecy in voting" "protects from public disclosure the identity of an individual voter and any content of the voter's ballot that could identify the voter."
The panel also concluded that the content of the ballot is not protected if the identity of the voter cannot be discerned "from the face of that ballot.'
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Breaking News: Appeals court rules in Marilyn Marks’ favor
Aspen Daily News Staff Report
Thursday, September 29, 2011
The Colorado Court of Appeals ruled in favor of local resident Marilyn Marks today in her case against the city of Aspen, agreeing with her that digital copies of election ballots are open to inspection by the public, so long as the identity of the voter cannot be discerned.
Marks was seeking to review computer files containing photographic images of the ballots cast in the May 2009 municipal election, in which Marks was a losing mayoral candidate. It was the city’s first and only election using instant runoff voting, where voters rank candidates in order of preference, and the information is used to simulate later runoff contests. Aspen voters later repealed instant runoff voting in favor of going back to traditional runoffs to decide close races.
Marks filed suit after the election, when it was revealed that voting software had miscounted the ballots, resulting in a higher margin of victory for Mayor Mick Ireland than originally reported. Marks argued that the ballot copies were subject to public review under the Colorado Open Records Act, but the city denied her request to release them, citing the Colorado Constitution, which requires “secrecy in voting.”
Judge James Boyd of the 9th Judicial District ruled in the city’s favor in March 2010. Marks appealed.
The 16-page opinion issued by a three-judge panel of the Colorado Court of Appeals found that releasing ballots does not violate the Constitution’s secrecy in voting clause, so long as there is no marking on the ballot that could reveal the identity of the voter.
“ … [W]e conclude that the phrase ‘secrecy in voting’ … protects from public disclosure the identity of an individual voter and any content of the voter’s ballot that could identify the voter,” the opinion says. “The content of a ballot is not protected, however, when the identity of a voter cannot be discerned from the face of that ballot. To the extent the [digital ballot copies] do not reveal a particular voter’s identity, then, permitting the right to inspect [the ballot images] would not be contrary to the ‘secrecy in voting’ provision of [the state Constitution].”
Furthermore, the court ruled that the ballot images were not the same as ballots, as defined by municipal election code. Therefore, the ballot copies are not subject to the same regulations concerning storage and destruction of paper ballots, which apply to election clerks.
The decision could have wide-ranging implications throughout Colorado, as Marks and others have sought to inspect ballots and election records in other areas of the state. Colorado Secretary of State Scott Gessler has stated in the past that he agrees with Marks, but the state county clerks association has vowed to fight determinations that voted ballots are widely open to inspection.
The Court of Appeals decision remands the case back to the district court level with instructions that Marks be granted access to the ballot images she sought. The decision also awards Marks her attorney’s fees for the appellate proceedings.
For more on the decision, pick up tomorrow’s Aspen Daily News.
Activist wins appeal in case against city
by Curtis Wackerle, Aspen Daily News Staff Writer
Friday, September 30, 2011
Colorado appeals court decision upholds open records law
Posted: Thursday, Sep 29th, 2011
By TERESA L. BENNS
By TERESA L. BENNS
DENVER — In a long awaited decision released Thursday morning, the Colorado Court of Appeals ruled in favor of ballots and ballot copies as public documents and ordered the City of Aspen to turn over 2,544 photo images of the ballots to a former candidate.
In 2009, Aspen resident Marilyn Marks ran for the city’s mayoral position. The race was conducted using computerized ballot technology and Aspen engaged a Maryland firm, TrueBallot, Inc (TBI), to tabulate the ballots and make digital copies of each one. These images were then randomly displayed over public video monitors and on news broadcasts to ensure greater election transparency.
Aspen Municipal Clerk Kathryn Koch arranged for the broadcast of the images. In fact, as the appeals court decision relates, “She assisted in the tabulation process by delivering the paper ballots to TBI in a previously agreed-upon manner so that portions of the TIFF files, once created, could be publicly displayed. [The] clerk subsequently disclosed that there was a discrepancy between the manual tallies of the paper ballots and TBI’s computer-generated data, such that the winner of the mayoral race received more votes than initially stated.
“Clerk [Koch], however, did not publicly disclose this information until nine days after she learned of it - which also happened to be almost a week after the expiration of the statutory deadline to contest the election.”
When she heard the news of the discrepancies, Marks presented Koch with a Colorado Open Records Act Request for the images of the ballots cast in the race. Koch refused to honor the request on the grounds that “(1) the TIFF files, being duplicates of ballots, were in fact ballots themselves, (2) releasing the TIFF files would violate the Colorado Constitution’s secrecy in voting requirement, which [the] clerk interpreted to bar the public disclosure of the contents of ballots,” according to the appellate decision.
Marks then sought a court order to enforce her CORA request, but the district court in Aspen ruled in Koch’s favor. Marks then appealed the ruling and won the appeal. Koch has not commented on whether or not the city will appeal the decision to the Supreme Court.
How decision affects current CORA cases
In August, Secretary of State Scott Gessler won the suit he filed in March against Saguache County Clerk Melinda Myers to gain access to the ballots from the 2010 Saguache election and allow citizen judges and watchers to count and examine those ballots. The citizen review Gessler promised Saguache voters took place Aug. 29-31.
District Judge Martin Gonzales, ruling in Gessler’s favor, stated in his decision that: “Voted ballots are not per se privileged. Voted ballots are ‘election records, Section 1-1- 104 (11), C.R.S. 2010. (‘Election records’ includes but is not limited to accounting forms, certificates of registration, pollbooks, certificates of election, signature cards, all affidavits, mail-in voter applications, mail-in voter lists and records, mail-in voter return envelopes, voted ballots, unused ballots, spoiled ballots and replacement ballots.’)
“This definition is incorporated into the Colorado Open Records Act (CORA), Section 24-72- 204(8)(c)(II), C.R.S. (2010)...CORA exempts only certain election records from disclosure...An election record, including a voted ballot, may be disclosed as long as the identity of the voter is not disclosed.”
The appeals court ruling confirms Gonzales’ decision. “Hence, we conclude that the phrase ‘secrecy in voting,’ when read in conjunction with the clauses described above, protects from public disclosure the identity of an individual voter and any content of the voter’s ballot that could identify the voter. See Danielson, 139 P.3d at 691. The content of a ballot is not protected, however, when the identity of the voter cannot be discerned from the face of that ballot. To the extent the TIFF files do not reveal a particular voter’s identity, then, permitting the right to inspect the TIFF files would not be contrary to the “secrecy in voting” provision of article VII, Sec. 8.”
Marks filed suit against Myers earlier this year to obtain CORA-requested documents that include electronic copies of voting device tabulations transferred via zip disk to a laptop computer used by Myers office to back up 2010 election results. Marks request was filed following circumstances very similar to her mayoral run, with Myers announcing that there were errors in the results of the Saguache election.
Gonzales’ decision notes that CORA forbids only the release of election records only when such records would allow unauthorized individuals access to “a person’s original signature, social security number, month of birth, day of the month of birth or identification.” The records Myers is withholding from Marks do not show these details. And the records Marks requested from the Jefferson County and Mesa County clerks in August, which both clerks refused to produce, also would fall under the appeals court ruling of what clerks are required to release under CORA.
In a recent editorial for the Grand Junction Sentinel Mesa County Clerk Sheila Reiner wrote: “The largest part of her [Marks’] request contains electronic images of votes cast on iVotronics (touch-screen voting machines) from our 2010 general election. We are unable to fulfill this part of her request. We strongly support the right of every voter to have a secret ballot.”
And yet the appeals court ruled Marks must be granted access to 2,544 “electronic images of votes cast,” stating that such images “are not ballots,” as Marks initially contended in her appeal to the court.
“This case should pretty much decide the Mesa and Jefferson County cases,” Marks’ attorney Robert McGuire said. McGuire filed the cases for Marks against the two counties, also appeals case and the case against Myers. He also commented that because the appeals court decided with Judge Gonzales that ballots are public records, “it seems to me that there’s no question the report we asked for is open to public inspection.”
Overall, McGuire said, the appeals decision has vindicated CORA rights statewide and positively impacted every other case in the state. This also will mean that the upcoming recall election for Myers will be fully open to public scrutiny.
Still uppermost, however, in Marilyn Marks’ mind is the rising cost of the ongoing suit with Saguache County. Marks was awarded attorney’s fees payable by the City of Aspen in the appeals decision, which are “sizable” she said.
In the earlier stages of the suit, Marks said, “The City of Aspen incurred over $70,000 in attorney’s fees” She estimated that the appeals court process brought each party’s fees into six figures each. She pointed out that the Saguache case is even more complicated and costly. Not only is she fighting Myers, Marks said, she also is battling with Election Systems & Software, manufacturer of the M650 voting device that produced some of the documents Marks seeks in her CORA suit.
“With the City of Aspen it was only one [set of] documents,” Marks said. “Clerk Myers has withheld dozens of documents. I am shocked that Saguache County Commissioners are risking such significant sums their constituent’s tax money to block transparency.”
In 2009, Aspen resident Marilyn Marks ran for the city’s mayoral position. The race was conducted using computerized ballot technology and Aspen engaged a Maryland firm, TrueBallot, Inc (TBI), to tabulate the ballots and make digital copies of each one. These images were then randomly displayed over public video monitors and on news broadcasts to ensure greater election transparency.
Aspen Municipal Clerk Kathryn Koch arranged for the broadcast of the images. In fact, as the appeals court decision relates, “She assisted in the tabulation process by delivering the paper ballots to TBI in a previously agreed-upon manner so that portions of the TIFF files, once created, could be publicly displayed. [The] clerk subsequently disclosed that there was a discrepancy between the manual tallies of the paper ballots and TBI’s computer-generated data, such that the winner of the mayoral race received more votes than initially stated.
“Clerk [Koch], however, did not publicly disclose this information until nine days after she learned of it - which also happened to be almost a week after the expiration of the statutory deadline to contest the election.”
When she heard the news of the discrepancies, Marks presented Koch with a Colorado Open Records Act Request for the images of the ballots cast in the race. Koch refused to honor the request on the grounds that “(1) the TIFF files, being duplicates of ballots, were in fact ballots themselves, (2) releasing the TIFF files would violate the Colorado Constitution’s secrecy in voting requirement, which [the] clerk interpreted to bar the public disclosure of the contents of ballots,” according to the appellate decision.
Marks then sought a court order to enforce her CORA request, but the district court in Aspen ruled in Koch’s favor. Marks then appealed the ruling and won the appeal. Koch has not commented on whether or not the city will appeal the decision to the Supreme Court.
How decision affects current CORA cases
In August, Secretary of State Scott Gessler won the suit he filed in March against Saguache County Clerk Melinda Myers to gain access to the ballots from the 2010 Saguache election and allow citizen judges and watchers to count and examine those ballots. The citizen review Gessler promised Saguache voters took place Aug. 29-31.
District Judge Martin Gonzales, ruling in Gessler’s favor, stated in his decision that: “Voted ballots are not per se privileged. Voted ballots are ‘election records, Section 1-1- 104 (11), C.R.S. 2010. (‘Election records’ includes but is not limited to accounting forms, certificates of registration, pollbooks, certificates of election, signature cards, all affidavits, mail-in voter applications, mail-in voter lists and records, mail-in voter return envelopes, voted ballots, unused ballots, spoiled ballots and replacement ballots.’)
“This definition is incorporated into the Colorado Open Records Act (CORA), Section 24-72- 204(8)(c)(II), C.R.S. (2010)...CORA exempts only certain election records from disclosure...An election record, including a voted ballot, may be disclosed as long as the identity of the voter is not disclosed.”
The appeals court ruling confirms Gonzales’ decision. “Hence, we conclude that the phrase ‘secrecy in voting,’ when read in conjunction with the clauses described above, protects from public disclosure the identity of an individual voter and any content of the voter’s ballot that could identify the voter. See Danielson, 139 P.3d at 691. The content of a ballot is not protected, however, when the identity of the voter cannot be discerned from the face of that ballot. To the extent the TIFF files do not reveal a particular voter’s identity, then, permitting the right to inspect the TIFF files would not be contrary to the “secrecy in voting” provision of article VII, Sec. 8.”
Marks filed suit against Myers earlier this year to obtain CORA-requested documents that include electronic copies of voting device tabulations transferred via zip disk to a laptop computer used by Myers office to back up 2010 election results. Marks request was filed following circumstances very similar to her mayoral run, with Myers announcing that there were errors in the results of the Saguache election.
Gonzales’ decision notes that CORA forbids only the release of election records only when such records would allow unauthorized individuals access to “a person’s original signature, social security number, month of birth, day of the month of birth or identification.” The records Myers is withholding from Marks do not show these details. And the records Marks requested from the Jefferson County and Mesa County clerks in August, which both clerks refused to produce, also would fall under the appeals court ruling of what clerks are required to release under CORA.
In a recent editorial for the Grand Junction Sentinel Mesa County Clerk Sheila Reiner wrote: “The largest part of her [Marks’] request contains electronic images of votes cast on iVotronics (touch-screen voting machines) from our 2010 general election. We are unable to fulfill this part of her request. We strongly support the right of every voter to have a secret ballot.”
And yet the appeals court ruled Marks must be granted access to 2,544 “electronic images of votes cast,” stating that such images “are not ballots,” as Marks initially contended in her appeal to the court.
“This case should pretty much decide the Mesa and Jefferson County cases,” Marks’ attorney Robert McGuire said. McGuire filed the cases for Marks against the two counties, also appeals case and the case against Myers. He also commented that because the appeals court decided with Judge Gonzales that ballots are public records, “it seems to me that there’s no question the report we asked for is open to public inspection.”
Overall, McGuire said, the appeals decision has vindicated CORA rights statewide and positively impacted every other case in the state. This also will mean that the upcoming recall election for Myers will be fully open to public scrutiny.
Still uppermost, however, in Marilyn Marks’ mind is the rising cost of the ongoing suit with Saguache County. Marks was awarded attorney’s fees payable by the City of Aspen in the appeals decision, which are “sizable” she said.
In the earlier stages of the suit, Marks said, “The City of Aspen incurred over $70,000 in attorney’s fees” She estimated that the appeals court process brought each party’s fees into six figures each. She pointed out that the Saguache case is even more complicated and costly. Not only is she fighting Myers, Marks said, she also is battling with Election Systems & Software, manufacturer of the M650 voting device that produced some of the documents Marks seeks in her CORA suit.
“With the City of Aspen it was only one [set of] documents,” Marks said. “Clerk Myers has withheld dozens of documents. I am shocked that Saguache County Commissioners are risking such significant sums their constituent’s tax money to block transparency.”
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Ballot privacy scare-mongering
By Alicia Caldwell Editorial Writer
The Colorado Clerk’s Association is obviously unhappy with a state appeals court ruling today that correctly — in my mind — allows for greater public access to examine voted ballots after elections.
Their news release, sent out within the hour, is devoid of facts or legal analysis and frankly, strikes me as an exercise in scare-mongering.
Today’s ruling has removed the curtain from our voting booths. Most Coloradans believe their votes should be a secret from their friends, coworkers and even spouses, but today’s ruling means Coloradans personal choices can be seen by anyone who asks.
I don’t know what ruling they’re looking at, but that’s not the one I read today. The ruling, which the Post’s Sara Burnett wrote about this morning, says electronic ballots can be examined by the public.
It also says quite clearly that “secrecy in voting” is a priority.
This passage comes from the Colorado Court of Appeals ruling:
It also says quite clearly that “secrecy in voting” is a priority.
This passage comes from the Colorado Court of Appeals ruling:
Hence, we conclude that the phrase “secrecy in voting” … protects from public disclosure the identity of an individual voter and any content of the voter’s ballot that could identify the voter.
The ruling goes on to say the content of a ballot is not protected when the identity of the voter cannot be discerned from the face of the ballot. I read that as saying if you can’t tell who voted the ballot, the ballot is public record.
The clerks’ news release makes sweeping assertions, without further explanation or analysis, that the ruling will compromise voter privacy. It says:
It exposes voters – particularly those in the military and in rural counties – to public review and intimidation. It turns our private decisions into political footballs that can, and will, be sought by advocates and election strategists.
I don’t see it. The clerks’ statement is over the top, and I find it surprising that they’d issue such a broad statement without analysis of the decision or explanation of rare and particular situations in which there are so few voters in an area that one could be identified. In those cases, ballots could — and should — be aggregated to protect identity.
Those shades of gray, however, probably wouldn’t support this statement, crafted with such dramatic flare.
The clerks also implore Colorado elected officials to ask their constituents this question: “Is it ok with you if your private choices are available to anyone?” Furthermore, they urge Secretary of State Scott Gessler and the General Assembly to “take steps” to ensure “personal beliefs are secure.”
It seems to me the clerks are attempting to set the stage for an effort to convince state lawmakers to change Colorado statutes in the next legislative session to prohibit public examination of voted ballots. I think that would be a step backward, but if that’s their intention, it would be helpful if they brought some facts and rigorous analysis to the table
Article printed from The Spot
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Gessler issues statement on Court of Appeals CORA ballot decision
“Pleased to see the court struck a balance between important interests”
Denver, Colorado – Secretary of State Scott Gessler issued the following statement today in response to the Colorado Court of Appeals decision in the Marks v. City of Aspen case:“Pleased to see the court struck a balance between important interests”
"I am pleased to see the court struck a balance between the important interests of openness and transparency in elections on one hand, and the need for voter privacy on the other. This decision highlights a need to develop procedural guidelines going forward. Our office will work with county clerks and recorders and the public to achieve this balance."
In the case, Marilyn Marks, a candidate in the 2009 Aspen mayoral race, sought access to electronic images of voted ballots under the Colorado Open Records Act. Marks’ request to view the ballot images had been denied by the Aspen municipal clerk. The appeals court found in favor of Marks. The decision can be found on the court of appeals website (PDF).
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Secretary of State backs Marks in election suit
by Andrew Travers, Aspen Daily News Staff Writer
Wednesday, June 8, 2011
Colorado’s chief election official says he believes that an unsuccessful Aspen mayoral candidate deserves to win a lawsuit against the city demanding access to ballot images from the 2009 municipal election.The suit filed by City Hall critic and ‘09 candidate for mayor Marilyn Marks was dismissed last year by local District Judge James Boyd. Marks has appealed the dismissal.
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