Aspen files to appeal ballot-images ruling
November 12, 2011
ASPEN – The city of Aspen has officially filed a motion to appeal a recent 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 mayor’s race.
According to the city, the Court of Appeals erred when it held that the Colorado Constitution does not protect the secrecy of ballots. The city’s filing of a “writ of certiorari” to the state Supreme Court does not mean the higher court will consider the appeal.
The motion carries Wednesday’s date, beating the Monday deadline to appeal the ruling by five calendar days. City Attorney John Worcester and Special Counsel James R. True are listed as the attorneys for the petitioner, the city of Aspen and City Clerk Kathryn Koch.
“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 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.”
“The city maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain secret,” the motion states. “For more than a century, laws in all 50 states require elections to be held by secret ballot. Because the decision of the Court of Appeals would have important ramifications for all future elections if allowed to stand, the city believes that it is important to have the Supreme Court review the lower court’s decision.”
According to a city news release issued Friday, Marks has 10 days to file an opposition brief and the city will have an additional five days to file a reply brief. “The Supreme Court has complete discretion in deciding whether it will grant the request for appeal. It may not be until 2012 that the city gets an answer,” the news release says.
In the meantime, the appellate court’s decision will be stayed and the ballot images, which are in TIFF format, will remain locked up, the news release says.
The Court of Appeals issued the ruling in late September. A week later, the city announced its intention to appeal the decision to the state Supreme Court. Wednesday’s filing formalizes the plan to appeal, which was decided during an executive session of the City Council last month.
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.
In a prepared statement from early October, she described the city’s argument about protecting voters’ rights by keeping ballots secret as “ludicrous.”
“My first impressions of the city’s decision and announcement is to shake my head in disbelief that City Council believes that their constituents are going to be fooled by their absurdly illogical and dishonest arguments,” Marks said.
“The press release about the right to ‘secret ballots’ is preposterous. The city seems to be arguing that in Aspen, officials may strip voters of their constitutional right to [examine] an anonymous, untraceable ballot and replace that hard-won human right with a ballot that is meant to be a secret – a secret that Big Brother is supposed to keep,” she wrote.
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.