Aspen council discusses legal issues surrounding requests to view ballots
November 8, 2011
ASPEN – City Attorney John Worcester said no decisions were reached during Monday’s hour-long executive session in which the Aspen City Council sought advice on how to deal with political activist Marilyn Marks’ lawsuit against the city and other election-related matters.
The city already has said the council would appeal the September state appellate court ruling which stated that Marks has a right to inspect ballot images from the 2009 mayoral election. In that contest, which relied on a computer system to determine the runoff winner, she ran second to incumbent Mick Ireland.
The city maintains that residents have a constitutional right to vote their consciences knowing that their ballots will remain “forever secret.” Marks’ lawsuit says the Colorado Open Records Act and other state laws allow public ballot inspection as long as it is not possible to discern a voter’s identity.
According to the city, the Court of Appeals recently erred when it held that the Colorado Constitution does not protect the secrecy of ballots. Because the appellate court decision will have statewide ramifications for future elections, the city has deemed it important to ask the State Supreme Court to review the ruling.
The city has yet to file a motion to challenge the appellate court ruling. The deadline is Monday, Nov. 14.
In a related issue, the council and the city’s attorneys also discussed two CORA requests to view actual paper ballots from the May 2011 mayoral election. In that contest, Ireland was elected to a third and final term. Local voters scrapped the city’s computerized Instant Runoff Voting system in 2010.
Political activists Elizabeth Milias and Harvie Branscomb filed the two public-records requests. Milias, a Republican, and Marks, who has no political-party affiliation, are allies and among Ireland’s most vocal critics. Branscomb is an Eagle County Democratic Party official who has been involved in local efforts to make voter ballots accessible to public examination.
Ward Hauenstein, a member of the city’s Election Commission, said the executive session’s agenda also included a request from the commission to hire independent legal counsel in order to obtain an outside opinion on whether it can approve requests to view ballots and ballot images cast in prior elections.
He did not participate in the closed-door meeting, where council members also were expected to consider whether Worcester has a conflict of interest in assisting the Election Commission, given his role in fighting the Marks lawsuit.