Scott Condon

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November 15, 2010
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State intervenes in Marks' campaign reform battle

ASPEN - Election reform crusader Marilyn Marks of Aspen stirred a statewide controversy during this election cycle with a fight over the rights of poll watchers.

Marks wanted to get closer to election judges and ballot-counting machines than the 6 feet that Pitkin County and state government officials believe is allowed by law.

"Marilyn Marks felt as a watcher she had a right to stand over the election judges and watch the count," said Pitkin County Clerk Janice Vos Caudill. That's not allowed, in part to limit disruptions to the election judges as they try to do their jobs, she said.

Marks said she wanted closer access as an observer to make sure ballots were being counted properly.

"If I'm going to do my job as a poll watcher, I need to see closer than 6 feet," she said.

Marks is a former mayoral candidate in Aspen and a political activist, often at odds with city government. She campaigned to abolish Aspen's instant runoff voting system in the Nov. 2 election. Now she's concentrating on the poll-watching issue.

Poll watchers have two important functions: They monitor voting at the polls on Election Day to make sure everything is running smoothly and that no voters are turned away without cause; and they watch the physical processing of votes. With the increasing use of early voting and mail-in voting, poll watchers are busy well before the actual Election Day.

In this election, for example, ballots that were mailed in were being processed by the Pitkin County clerk starting Monday, Oct. 25.

Marks said she isn't challenging the 6-foot rule at polling places. It is clear that poll watchers must stay 6 feet away from voters so there is no chance of intimidation, she said. But she doesn't believe state law applies the 6-foot rule to poll watchers' observation of the processing of ballots by election judges.

Vos Caudill disputed Marks' claim and consulted with the Colorado Secretary of State. The secretary referred the matter to the Colorado Attorney General's Office. An attorney there on Oct. 20 advised the secretary of state as well as interested county clerks that the 6-foot rule applied to the processing of ballots as well as voting at polls.

"The 6-foot limit also applies to access to ballots because the primary purpose is to protect the integrity and secrecy of the ballot," wrote Deputy Attorney General Maurice Knaizer.

Based on that analysis, Vos Caudill enforced the rule. Marks and another poll watcher, Harvie Branscomb, reported to duty as poll watchers on Oct. 25 armed with binoculars. They stood on chairs outside the 6-foot limit and tried to focus on the work of the election judges.

"It really was a nonissue," Vos Caudill said. "Everybody ignored it."

Vos Caudill said she regarded the use of the binoculars as a protest or challenge to the 6-foot limit. Marks had informed the clerk's office in advance that she was bringing binoculars. Vos Caudill said she asked the secretary of state's office if that was legal and was told no law specifically barred the eyepiece.

Marks said she was simply trying to comply with the 6-foot rule, even though she didn't think it applied. In any event, the experiment failed.

"Nobody objected to it but it was just too damn hard to do," Marks said.

It was impossible to focus the binoculars on the ballots as they were handled by the judges. In addition, she didn't feel safe standing on the chair.

However, other events on Oct. 25 solidified Marks' resolve to fight the 6-foot limit. A machine that sorts ballots erroneously assessed that some ballots were cast for a write-in candidate when, in fact, they were not.

Given the occurrence of those alleged errors, she contends poll watchers should have greater access because state law allows them to "assist in the correction of discrepancies" in the ballot counts.

Vos Caudill said her office and the election judges worked to ensure there were no processing errors because of faulty sorting. Ballots were hand-checked and double-checked to make sure they were accurately counted, she said.

While the 6-foot limit might seem an obscure issue, Marks contends it is at the heart of a fundamental democratic principle. An unaffiliated candidate, such as Kathleen Curry in the House District 61 race, must be able to have poll watchers monitor the process to assure votes are being accurately counted, Marks said. People affiliated with issue campaigns in elections must have peace of mind about the integrity of the ballots counts, she said.

Today's election system favors the two main parties - at the expense of independent candidates and proponents and foes of ballot issues, she claimed. Election judges are appointed by the county clerk, who works with the party chairs in the county. Judges are often affiliated with the Democratic or Republican parties, although in Pitkin County there are also a large number of unaffiliated judges.

The issue for Marks isn't that she thinks Democratic and Republican election judges are rigging vote counts; it's about transparency in the system to ensure there are no errors made in processing ballots. Unaffiliated candidates run the risk of being "disenfranchised" by the current system, she said.

"I'm objecting to this as undemocratic," Marks said. "It's a totally unleveled playing field. This is why I've been yelling bloody murder about the 6-foot rule."

Vos Caudill bristled at Marks' insinuation that the election judges aren't capable of doing their jobs.

"I really admire the integrity of our judges," she said.

Marks initially worked as a poll watcher this election in two capacities, for Curry's campaign and for a committee involved in Aspen's instant runoff voting ballot question. Curry removed Marks as a poll watcher.

Marks said she will try to get the issue analyzed in greater detail by the new state attorney general after he takes office in January. If she could muster the financial backing, she would file a lawsuit in federal court trying to earn access for poll watchers under equal protection doctrines of federal law.

ASPEN - Aspen activist Marilyn Marks was removed as a poll watcher by House District 61 candidate Kathleen Curry in the recent election to try to defuse tensions between Marks and election officials, according to Curry.

Curry said she appreciated Marks' support and was grateful for her advice as someone thoroughly educated on Colorado campaign laws and procedures. Nevertheless, she felt it was best to severe ties with Marks as a poll watcher the week before the Nov. 2 election.

Marks is a "controversial figure" in Pitkin County, Curry said. In the latest election, Marks asserted she had a right as a poll watcher to be within 6 feet of election judges and the processing of ballots. The argument was forwarded by the Pitkin County clerk to the Colorado Secretary of State's Office, which sought advice from the state attorney general. Marks appeared as a poll watcher on Curry's behalf on Monday, Oct. 25, when Pitkin County started processing mail-in ballots.

"It got, I guess, pretty contentious," Curry said. "It elevated the tension in the room having her there."

Curry said she didn't necessarily disagree with Marks' position, but the candidate felt it best to try to "ease tensions" by replacing Marks with a longtime supporter and campaign helper from her home area of Gunnison County. As the election progressed, Curry said she tried to get campaign helpers from Gunnison County in place as poll watchers throughout the district.

Curry said she thought the replacement hurt Marks' feelings but that Marks understood her desire to get her campaign helpers inserted as poll watchers.

Marks stressed the contentiousness wasn't between her and Curry. She said she remains a Curry supporter and will continue to help her poll watchers in a race that isn't settled yet.

Curry, an incumbent, had defected from the Democratic Party since the last election in 2008 and mounted a write-in campaign this time around. She trails Democratic candidate Roger Wilson to represent the district that includes the Roaring Fork Valley.

However, a judge ordered that ballots that had Curry's name written in, but didn't have the write-in box checked, must be counted. County clerks throughout House District 61 will count those ballots Monday and Tuesday.

- Scott Condon

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The Aspen Times Updated Nov 15, 2010 03:47PM Published Nov 15, 2010 03:45PM Copyright 2010 The Aspen Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.