ASPEN - The City Attorney's Office is asking Pitkin County District Court for an order that allows it to keep the public from viewing paper ballots cast in the 2011 spring municipal election.
Two people - Elizabeth Milias and Harvie Branscomb - have filed Colorado Open Records Act requests with the city Election Commission, seeking to view ballots cast in the May election that don't list write-in candidates. Through handwriting techniques or otherwise, such ballots might identify a voter, and their release to the public would be illegal.
Milias is an Aspen resident and outspoken critic of Mayor Mick Ireland and many city government dealings. Branscomb, of El Jebel, is an Eagle County Democratic Party official and fervent supporter of "ballot transparency," the view that cast ballots are public record and should be subject to public scrutiny.
The city maintains the opposite viewpoint, saying state law holds that a voter's cast ballot should remain "forever secret."
City Attorney John Worcester and Assistant City Attorney James R. True stated in Thursday's petition to the court that the requests to inspect ballots from the city's most recent election have been denied by City Clerk Kathryn Koch because their release would be illegal based on city code and state law. As city clerk, Koch is the custodian of municipal records, including election ballots.
"The custodian of cast ballots is of the opinion that the public disclosure of the ballots would do substantial injury to the public interest," the petition states.
Koch, who also serves on the Election Commission, also denied a similar request by Aspen political activist Marilyn Marks in 2009. Marks sought to view ballot images from the May election, in which she ran second to Ireland, the incumbent. Those images are in the form of TIFF files on a computer disk.
The city's denial of Marks' request to view the images sparked a lawsuit that was shot down by 9th Judicial District Court Judge James Boyd. However, in September, the state Court of Appeals reversed the decision and ruled that the ballot images could be inspected by the public as long as they don't carry distinguishing marks that would identify a voter. The appellate court remanded the case back to district court, ordering that Marks be allowed to examine the ballot images.
Last week, the city filed a motion to appeal that ruling with the state Supreme Court, which might or might not decide to take up the matter. City officials also have taken the position that the Legislature should address the issue of whether ballots and ballot images are public record, not the courts.
As for the 2011 ballots, True has said that while the two requests were made to the Election Commission, the city maintains that the city clerk is the custodian of the records, not the commission.
Worcester said Monday that the city faces a dilemma. A section in city code states that election ballots have to be destroyed six months after a municipal election. That date arrived last week, which led the city to ask for the court order.
"The clerk is under duty to destroy them, yet she's got a CORA request saying [people] want to look at them," Worcester said. "So she's in trouble if she doesn't destroy them, but she may be in trouble if she doesn't disclose them to the public."
Essentially, the city is asking the court to solve the issue, he said. However, in 2009, the city didn't seek the court's advice on the question of whether to allow Marks to inspect ballot images.
"That was a little different," Worcester said. "In that case, they filed suit before we did."
In addition to asking the court for permission not to release the ballots, the city also is asking for permission not to destroy them, he added.