DENVER - The Colorado Supreme Court has agreed to hear the city of Aspen's motion to appeal September's state Court of Appeals ruling that favored political activist Marilyn Marks' lawsuit challenging the city's denial of her request to view ballot images from the 2009 mayoral race.
According to the city, the Court of Appeals erred when it held that the Colorado Constitution does not protect the secrecy of ballots. On Nov. 11, the city requested a review of the case by the state Supreme Court.
"In elections, there is a functional conflict between two important values: the ability to verify election results and the right of voters to a secret ballot," the city's motion states. "All election systems used in the United States since the introduction of the secret ballot in the (late 19th century) have sought to strike a compromise between these two values. In arriving at a compromise, election systems have uniformly given greater weight to secrecy over verifiability."
The motion goes on to say that since 1876, the Colorado Legislature has enacted numerous laws to secure the purity of elections and "guard against the abuses of the elective franchise."
Marks, who lost the 2009 mayor's race to incumbent Mick Ireland, has been pressing the ballot-transparency issue since Koch denied her request to examine the ballot images.
The three-judge appellate court decision in September overturned 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.
In a summary of issues, the state Supreme Court said it would consider:
• Whether the Colorado Constitution prohibits making cast election ballots available for public inspection pursuant to the state Open Records Act.
• Whether the Municipal Election Code prohibits making copies of election ballots available for public inspection pursuant to the Colorado Open Records Act.
• Whether the Court of Appeals erred in failing to remand the case to the District Court in accordance with state law, to determine the propriety of the custodian's refusal to make cast ballots available for public inspection on the grounds that such disclosure "would do substantial injury to the public interest."
• Whether the Court of Appeals erred in awarding appellate attorney fees to the respondent in the absence of a determination by the District Court pursuant to state law that "the custodian, in good faith, after exercising reasonable diligence, and after making reasonable inquiry, was unable to determine if disclosure of the public record was prohibited without a ruling by the court."