-Aspen's historic May 5, 2009 IRV election audited as single ballots-
5/5/09 Aspen CO held an instant runoff election (IRV) for mayor and 2 council members. Interpreted contents of each ballot, scanned by True Ballot, were publicly released. Open records requests for a CD of image scans were denied. Aspen has been sued to protect records from destruction and to allow inspection of the scanned ballot files. A Court of Appeals ruling holds that unidentifiable ballots are public records.
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.
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.
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.
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.
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.
