Appeals court rules ballots public in Aspen case
September 30, 2011
ASPEN – Aspen resident Marilyn Marks, the 2009 mayoral candidate who sued the city over the right to view ballot images from the election she lost, received a favorable ruling from the state Court of Appeals on Thursday.
A three-judge panel issued a decision that said electronic images of ballots should be available for public inspection as long as the ballot cannot reveal a voter’s identity. The judgment overturns 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.
Marks said the decision will have statewide impact. Her lawsuit against the city of Aspen specifically named City Clerk Kathryn Koch as the defendant. It was Koch who officially denied Marks’ request to examine 2,544 digital copies of ballots cast in the mayor’s race.
Marks’ suit was based partly on the Colorado Open Records Act, which states that “all public records shall be open for inspection by any person at reasonable times, except as provided … by law.” The city claimed that one exception was the Colorado Constitution’s “secrecy in voting” requirement, and another was the state election code’s ballot storage and destruction provision. The appeals court disagreed.
“We are very happy with the ruling,” said Denver attorney Robert McGuire, who represented Marks in the case, which was argued before the appellate court in late April.
“It ruled in favor of us in all counts,” McGuire said. “I think in the long term it hopefully means that election officials will not be quite as resistant as we found Aspen to be in preventing people from taking a look at election materials they would need to look at in order to verify elections.”
The ruling, he said, “sets out as a principle that ballots [and ballot images] are public records that can be inspected as long as they don’t have identifying marks on them.”
Assistant city attorney Jim True said it would be up to the City Council to decide whether to appeal the judgment to the Colorado Supreme Court or to ask the Court of Appeals to hold another hearing and reconsider the case. There are deadlines of 46 days and 15 days, respectively, to file motions on each option, he said.
“We in the City Attorney’s Office believe there are grounds to appeal the decision,” True said. “There’s a lot of discussion that will go forward regarding this decision, not just in this community but probably all over the state.”
True pointed out that the appellate decision gives the city clerk’s office discretion in determining which ballots or ballot images have a possibility of identifying voters. In an amended open records request to the city after her initial request, Marks sought to exclude the digital copies containing either a write-in candidate or ballot markings the clerk thought might identify a voter. Still, the city decided not to give her what she wanted.
“We feel that we complied with the law, the district court agreed with us, but the Court of Appeals interpreted the law differently, and put forth procedures that aren’t in the law,” True said. “Giving the clerk the discretion to determine ballot markings that could identify an individual voter is not in set forth in the law, anywhere.”
In addition to ordering the district court to require the city to open up ballot images to public inspection, the judgment also requires the city to pay the plaintiff’s legal fees. McGuire said that amount has yet to be calculated.
The ballot images were created as part of a computerized counting system designed for the city’s Instant Runoff Voting procedure. That procedure, which allowed voters to rank a slate of candidates instead of simply choosing one particular candidate, used software to determine the winner by simulating a runoff election. It was later rejected by voters following the controversy over Marks’ request to examine the ballot copies. The city has returned to a more traditional runoff system.
Marks is a frequent critic of Mayor Mick Ireland, who defeated her in 2009 to win a second term. Earlier this year, he won a third term, but Marks was not a challenger. In neither election did she officially contest the election result.
Along with filing the lawsuit after the 2009 election, Marks obtained a court injunction preventing the city from destroying the computer-generated ballot images pending a ruling in her case. Marks said Thursday that she still would like to see the images in light of the unusual nature of the Instant Runoff Voting election.
She said she has received many emails from people nationwide – supporters and opponents of computerized runoff procedures – saying that they want to see the images as well, in order to test the tabulations for themselves.
“That’s the only IRV election that’s ever been held in Colorado,” she said. “There are a number of people interested in seeing those images. Absolutely, we will be looking at those.”
However, she added that the principle behind her lawsuit was a primary concern: “This really related to a statewide principle for all of Colorado dealing with the verifiability of past and future elections,” Marks said.
The timing of the ruling is especially important, coming before the 2012 presidential and congressional elections, she said.
Colorado Secretary of State Scott Gessler reportedly has said that he would use the court’s decision as guidance for beginning a process to rewrite the rules on how to conduct public reviews of voted ballots. Public access to voted ballots will improve transparency, he said earlier this month, thereby increasing voter confidence in elections.
True said that only the Colorado General Assembly can make changes that overturn provisions of state law governing public records.
“The Colorado Open Records Act doesn’t give him authority to make guidelines about how you release a public document,” True said. “We’re saying and have said all along that [this issue] should be addressed by the Legislature, not the courts.”
Not long after the spring 2009 election, Koch determined a discrepancy between manual tallies of the original paper ballots and the computer-generated data of the outside consultant overseeing the Instant Runoff Voting procedure. Marks began making her queries about examining the digital copies once that discrepancy became public.