ASPEN — A trial has been set in Aspen resident Marilyn Mark's lawsuit against City Clerk Kathryn Koch, which attempts to force Koch into releasing ballot images from last May's city election.

Judge James Boyd of the Ninth Judicial District Court will hear the case March 22-23 and is expected to make a ruling on whether the digital ballot images should be released so Marks can review them for what she says are auditing purposes.

In the meantime, lawyers on both sides are arguing whether officials with Maryland-based True Ballot Inc. — the administrators of the election and the tabulators of the results — should be deposed.

The city's motion for a protective order asking the judge to disallow testimony from True Ballot staff should be denied, argued Marks' Denver-based attorney, Robert McGuire, in a filing last week.

McGuire said that testimony is relevant because as administrators of the election, they created what he describes as public records — TIFF files that were flashed on the screens in City Council chambers on election night.

Marks ran for mayor against three candidates, including incumbent Mick Ireland. The election marked the debut of the city's voter-approved Instant Runoff Voting, which pitted Marks against Ireland. Ireland prevailed with 1,301 votes, or 53.6 percent. Marks received 1,124 votes, or 46.4 percent.

Marks is an opponent of the IRV method, which ranks candidates in order of preference. She is involved in an effort to review the system and make reforms to the local election process.

The city argues that Marks' interest in deposing True Ballot official is not relevant to the legal case, and instead is an attempt to gather information to continue her ongoing campaign of disparaging the local government for the manner in which it conducted the May election and to question the legitimacy of the mayor's election to office, according to its motion filed Feb. 4.

The city furthers argues that deposing True Ballot staff is designed for the sole purpose to “annoy or embarrass” Koch and the city. However, the city doesn't believe that anything could be revealed in the proposed depositions that would actually embarrass the local government, according to the city's motion.

“... these proposed depositions appear to be nothing more than an effort to annoy True Ballot Inc. so that they will avoid contracting with the city of Aspen to help conduct future city elections,” the motion states. “In this way, the plaintiff will affect the city's ability to conduct an instant run-off election in the future.”

McGuire argues in his response that deposing True Ballot would shed light on how the TIFF files were created, how they were displayed publicly on election night and how they were handled post election. In addition, McGuire wants to ask True Ballot officials how they tabulated the ballots on election night, and the processes used to verify and audit the results.

“Inquiry in the three designated subject areas will elicit evidence showing that public disclosure of the TIFF files is the only way to allow independent verification of whether the IRV system functions property,” McGuire wrote in his motion. “More specifically, evidence about the public display of the TIFF files on election night in the Aspen election bears directly on the inconsistency and lack of credibility of the defendant's view of the public interest adopted for this case.”

Shortly after the election, Marks filed a Colorado Open Record Act request for a portion of the ballot images cast by Aspen voters so they can be checked against how the scanning machines interpreted them as part of an independent review to be conducted by an outside group.

That request was denied by the city, which prompted Marks to file a lawsuit in October.

The city filed a motion to dismiss Marks' lawsuit, arguing several points, including that people have a right to a secret ballot under the city's home rule charter.

Judge Boyd has not ruled on that motion.

City Attorney John Worcester has argued that if the images were released, some voters' identities could be revealed because of unique or unintentional markings on the ballots in question.

The city also argues that releasing the images would set a precedent for future elections, and people might intentionally mark their ballots knowing that they will be viewed by the public. Furthermore, it's against state law to release ballots, Worcester added.

Marks argues that it's unconstitutional not to release the ballots because they weren't secret — the city released data strings, which show candidate rankings, and images that were flashed on TV screens in council chambers.

“The city is fighting what it already had planned to do,” she said. “There's no reason not to show the images. They already have been showed to the public.”

Worcester said Marks' arguments in the legal case are focused on challenging the IRV election, which is not what's it about.

“The issue is whether the ballots should be released per state law,” he said. “There's nothing that [True Ballot staff] would address [regarding] whether the ballots should be released.”

A status conference is set for Feb. 18, when it's expected Boyd will make a ruling on whether True Ballot officials can be deposed.

Legal fees mount in lawsuit vs. city

Aspen resident Marilyn Marks said that by the time her lawsuit against the city goes to trial in March she will have spent $75,000 in legal fees.

The city of Aspen also has spent a great deal of time, money and effort defending against Marks' legal pursuit to release a portion of the digital ballot images from last May's first-ever Instant Runoff Voting (IRV) election. She wants to inspect them as part of an independent review and future reform.

Whoever loses will likely have to pay the other side's legal fees, per a judge's ruling.

City Attorney John Worcester said he has spent more than 100 hours on the case since Marks filed suit in October. So has the city's special counsel, Jim True, as well as City Clerk Kathryn Koch.

The city's expert witness, Scott Adler, a professor of political science at the University of Colorado-Boulder, is charging the city $175 an hour for his testimony. He's already spent between five and six hours preparing a report that assesses the impact of releasing the ballots.

Adler will be a key witness for the city. He specializes in American politics, with a focus on elections and voting.

On Marks' side, she and her Denver-based attorney, Robert McGuire, are calling on Carolyn Crnich, the clerk from Humboldt County, Calif., which publicly posts ballot images.

While Crnich can't accept money for testifying because she is a government official, Marks said she will be paying for her travel and other expenses.

Marks also plans to call Koch to the stand, as well as Harvie Branscomb, an El Jebel resident who is heavily involved in local and state elections, and reform measures.

Marks said she also will testify.

Worcester said the city's witnesses include former Aspen City Councilman Jack Johnson, who helped create the IRV method used in the May election, in which he lost his re-election bid.

The city will call Koch to the stand, as well as Aspen resident and city employee Chuck Fillion, who was a poll watcher and assisted Koch in the election.

Marks also has hired a Maryland-based law firm to handle matters regarding the potential deposition of True Ballots Inc. officials, the administrators of the city election. The firm is based in Maryland and would be deposed there.

“In order to get the testimony it has become an expensive process,” she said.

Marks said she's confident she'll win the case and that Aspen taxpayers will have to pay her legal expenses.

“I've been writing thousands of dollars in checks this week,” Marks said Thursday. “That will be taxpayer money at risk.”

Obviously, Worcester said he believes the city will prevail and that Marks will have to pay for its legal expenses.

Marks said she's raised about $20,000, most of which has come from individuals around the country who are interested in election reform.

csack@aspentimes.com