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
----------------------------------------------------------------------------------------
City to appeal ballot ruling
by Curtis Wackerle, Aspen Daily News Staff Writer
Wednesday, October 5, 2011
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.
Neither court considered the argument that releasing the ballots would cause substantial injury to the public interest, which is grounds for withholding what would otherwise be public record under CORA. The city, in its appeal to the Supreme Court, will argue that the public injury argument should have a full hearing.
“We never got a chance to show there is harm,” Aspen Mayor Mick Ireland said.
The city argues that releasing ballots after each election to anyone who wants to see them — which both sides consider to be the implication of the appellate court’s ruling — would invite a host of negative consequences including fraud and disenfranchisement. For one, vote buying could become a possibility because if someone could mark their ballot in a clandestine manner, and that ballot became public, the person could then prove they voted in such a way. However, Marks correctly points out that marking ballots for such a purpose is illegal. The city argues that the fact that something’s illegal wouldn’t prevent all cases.
The public could also lose confidence in the anonymity of the ballot if even the perception existed that there were analysts capable of cross-checking the ballots with precinct logs to determine who voted how, the city argues.
“At issue in the lawsuit ... is the right of citizens to expect that their cast ballots will remain secret,” according to a city press release issued Tuesday. “The city maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain forever secret.”
There could also be the consequence of never-ending election contests and disputes, especially when freelance recounters were not given all the ballots, because some of those ballots did have discerning markings on them, the city argues.
There is also the issue of how election officials would decide which ballots should be held back because of markings or other identifying characteristics.
“To tell clerks to sift through all ballots ... is crazy,” City Attorney John Worcester said.
Worcester and city special counsel Jim True met with City Council in a closed-door executive session Monday night to consult on whether or not to appeal. A press release announcing the determination — draft copies of which were seen in the hands of city attorneys prior to the executive session — was sent out Tuesday afternoon. City Council was unanimous in its direction to appeal, Ireland and Worcester said, although there was discussion of the pros and cons.
Ireland said he was certain he wanted to appeal shortly after reading the appellate court’s 16-page opinion last week.
Councilman Adam Frisch, while clarifying that he in general supports Marks’ efforts at a higher degree of transparency in elections, said he backed the appeal because the case is precedent setting with statewide implications. The state’s highest court should have the opportunity to sort the issue out, said Frisch, who admitted that he read just parts of the appellate court’s opinion.
A balance must be struck that respects both voter privacy and verifiable elections, Frisch said.
Marks said she was dismayed that the city didn’t take public input before deciding to appeal to the Supreme Court, which could end up costing the city hundreds of thousands of dollars if it loses. The city is spending public time and resources to fight election transparency, she said.
“The secretary of state [Scott Gessler] would tell them they are going to lose this case,” Marks said. “ ... I have a real problem with the process they went through.”
Marks suggested that the city is trying to pull off a massive snow job on the population.
“They think they are going to fool the public here,” Marks said.
At issue is the difference between “anonymous” and “secret” ballots, she said, arguing that secret ballots are not a right, but anonymous ballots are.
“The press release about the right to ‘secret ballots’ is preposterous,” Marks wrote in an email. “The city seems to be arguing that in Aspen, officials may strip voters of their constitutional right to an anonymous, untraceable ballot and replace that hard-won human right with a ballot that is meant to be a ‘secret’ — a secret that Big Brother is supposed to keep.
“When voters hear this ludicrous argument about rights to ‘secret ballots,’ I hope they will understand that the city is claiming that officials have the ‘right’ to know how we vote so long as they keep the ‘secret’ among themselves. The argument smacks of not-so-subtle voter intimidation.”
The Supreme Court has to decide to take the case.
Also at issue are the growing attorney’s fees Marks has racked up, as well as the city through the hours spent by its attorneys on the case. The Court of Appeals ruled that the city must reimburse Marks for her fees, but that directive is stayed until the Supreme Court weighs in. Marks said her attorney’s fees are in the “six figures” but would not elaborate.
When the city won at the district court level, it filed to recoup attorney’s fees from Marks for the time Worcester and True — who are salaried employees — spent on the case. It estimated that their time devoted to the case as of March 2010 was worth $67,047, at $385 an hour.
The Supreme Court, depending on how it decides the case should it chose to take it, could award either party the right to recoup fees, or determine that no such directive is necessary.
curtis@aspendailynews.com
-------------------------------------------------------------------------
[note that the ballot scan shown in the photo in the newspaper and below is a live and very publicly viewable ballot, as it was on election night, and as it should be]
October, 5 2011 4:40 am
Aspen to appeal ruling over ballot images
Political activist Marilyn Marks: 'Voters should be up in arms'
A ballot from Aspen's 2009 election is displayed on a screen at City Hall. It was the city's first and only use of Instant Runoff Voting. The city is now appealing a court decision that would make the ballot images public.
Janet Urquhart / Aspen Times file
ASPEN — In a somewhat expected move, the city of Aspen has decided to appeal last week's state appellate court judgment that said local political activist Marilyn Marks has a right to inspect ballot images from the 2009 mayoral election.
“The Aspen City Council has directed staff to appeal the Marks v. Koch case to the Colorado Supreme Court,” says a statement released Tuesday from the City Attorney's Office. “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 that it is residents' constitutional right to vote their consciences knowing that their ballots will remain “forever secret,” the prepared statement says. The lawsuit against City Clerk Kathryn Koch, who declined Marks' request to view ballot images from the spring election that Marks lost, states that the Colorado Open Records Act and other state laws allow public ballot inspection as long as it is not possible to discern a voter's identity.
“This case is not about election transparency,” the city's statement reads. “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.”
According to the city, the Court of Appeals erred when it held that the Colorado Constitution does not protect the secrecy of ballots. Because the appellate court decision will have statewide ramifications for future elections, the city has deemed it important to ask the State Supreme Court to review the ruling.
Officially, the city has until Nov. 14 to ask the higher court to review the case. In the meantime, the appellate court's decision will be put on hold, meaning all ballots and ballot images from the May 2009 election will remain inaccessible to Marks or anyone else.
Reached by e-mail Tuesday, Marks described as “ludicrous” the city's argument about protecting voters' rights by keeping ballots secret.
“My first impressions of the city's decision and announcement is to shake my head in disbelief that City Council believes that their constituents are going to be fooled by their absurdly illogical and dishonest arguments,” Marks said. “The press release about the right to ‘secret ballots' is preposterous. The city seems to be arguing that in Aspen, officials may strip voters of their constitutional right to [examine] an anonymous, untraceable ballot and replace that hard-won human right with a ballot that is meant to be a secret — a secret that Big Brother is supposed to keep.”
She added, “I hope [voters] will understand that the city is claiming that officials have the ‘right' to know how we vote so long as they keep the ‘secret' among themselves. The argument smacks of not-so-subtle voter intimidation.”
According to Marks, voters should be “up in arms,” especially in Aspen, where local government plays a huge role in the economy, providing housing, jobs, contracts and permits.
“City Council members know quite well that the Colorado Constitution guarantees anonymous ballots, which cannot be traced to the voter,” she said. “They like to fudge on the terminology (‘secret' versus ‘anonymous') in order to intimidate voters and suggest that the ballots are traceable and the voters choices kept secret among those officials who get to look at them and determine how people voted.
“No one, particularly government officials, can know how we vote in an election that is legally conducted under our constitution,” she continued. “If the council cannot show us the ballots because the ballots are identifiable, they are acknowledging that they conducted an unconstitutional election.”
Marks said that if government officials who run elections can do so without public accountability and verifiability of the election, “What's to keep them from announcing anyone they wish as the winner?”
She added that council members should consider reviewing the ballots from the Pitkin County election in November 2010, which included races for U.S. Senate, Congress, governor and other elected posts.
“Those ballots are open for anyone to see,” she said. “They are public records, right across the street from City Hall. Can anyone trace them back to the voters? No, of course not. They are anonymous pieces of paper. So, why should the city of Aspen need to keep their ballots secret?”
A three-judge appellate panel issued its decision last Thursday, overturning 9th District Court Judge James Boyd's ruling in March 2010 that upheld the city's decision to withhold the ballot images from public scrutiny.
asalvail@aspentimes.com
“The Aspen City Council has directed staff to appeal the Marks v. Koch case to the Colorado Supreme Court,” says a statement released Tuesday from the City Attorney's Office. “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 that it is residents' constitutional right to vote their consciences knowing that their ballots will remain “forever secret,” the prepared statement says. The lawsuit against City Clerk Kathryn Koch, who declined Marks' request to view ballot images from the spring election that Marks lost, states that the Colorado Open Records Act and other state laws allow public ballot inspection as long as it is not possible to discern a voter's identity.
“This case is not about election transparency,” the city's statement reads. “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.”
According to the city, the Court of Appeals erred when it held that the Colorado Constitution does not protect the secrecy of ballots. Because the appellate court decision will have statewide ramifications for future elections, the city has deemed it important to ask the State Supreme Court to review the ruling.
Officially, the city has until Nov. 14 to ask the higher court to review the case. In the meantime, the appellate court's decision will be put on hold, meaning all ballots and ballot images from the May 2009 election will remain inaccessible to Marks or anyone else.
Reached by e-mail Tuesday, Marks described as “ludicrous” the city's argument about protecting voters' rights by keeping ballots secret.
“My first impressions of the city's decision and announcement is to shake my head in disbelief that City Council believes that their constituents are going to be fooled by their absurdly illogical and dishonest arguments,” Marks said. “The press release about the right to ‘secret ballots' is preposterous. The city seems to be arguing that in Aspen, officials may strip voters of their constitutional right to [examine] an anonymous, untraceable ballot and replace that hard-won human right with a ballot that is meant to be a secret — a secret that Big Brother is supposed to keep.”
She added, “I hope [voters] will understand that the city is claiming that officials have the ‘right' to know how we vote so long as they keep the ‘secret' among themselves. The argument smacks of not-so-subtle voter intimidation.”
According to Marks, voters should be “up in arms,” especially in Aspen, where local government plays a huge role in the economy, providing housing, jobs, contracts and permits.
“City Council members know quite well that the Colorado Constitution guarantees anonymous ballots, which cannot be traced to the voter,” she said. “They like to fudge on the terminology (‘secret' versus ‘anonymous') in order to intimidate voters and suggest that the ballots are traceable and the voters choices kept secret among those officials who get to look at them and determine how people voted.
“No one, particularly government officials, can know how we vote in an election that is legally conducted under our constitution,” she continued. “If the council cannot show us the ballots because the ballots are identifiable, they are acknowledging that they conducted an unconstitutional election.”
Marks said that if government officials who run elections can do so without public accountability and verifiability of the election, “What's to keep them from announcing anyone they wish as the winner?”
She added that council members should consider reviewing the ballots from the Pitkin County election in November 2010, which included races for U.S. Senate, Congress, governor and other elected posts.
“Those ballots are open for anyone to see,” she said. “They are public records, right across the street from City Hall. Can anyone trace them back to the voters? No, of course not. They are anonymous pieces of paper. So, why should the city of Aspen need to keep their ballots secret?”
A three-judge appellate panel issued its decision last Thursday, overturning 9th District Court Judge James Boyd's ruling in March 2010 that upheld the city's decision to withhold the ballot images from public scrutiny.
asalvail@aspentimes.com
--------------------------------------------------------------------------------------------------------
City of Aspen appeals to Supreme Court on ballot review case
October 4, 2011, 10:22 pm
By Catherine Lutz
[see comments at the end of this not fully balanced story]
-----------------------------------------------------------------------------------------------
Letters to Editor:
Public access to public Information: Letter to Editor by Scott Writer
The City needs to back off: Letter to Editor by Mary Eberle
Did the City attack the messenger? Letter to Editor by Neil Siegel
City of Aspen should throw in the towel: Letter to Editor by Richie Cohen
Don't release ballot images: Letter to Editor by Millard Zimet
[ note that Mr. Zimet seems confused... his concern about violating the privacy of the voter intent can be used with the cast vote records or "strings" that for the 2009 election were already released publicly... any release of ballots or ballot images from that election would not reveal any more about the contents of the votes that were mistakenly released in an order that is not unrelated to the order in which voters appeared to vote- a list that is also a public record. The simple solution to Mr. Zimet's concern is to shuffle the ballots before they are numbered for release to the public, so that a correlation of voter to ballot cannot be made using simple matching of the lists. Mr. Zimet's letter isn't relevant to the issue of whether or not ballots are to be public records in future elections. ]
No comments:
Post a Comment