Marks prevails in Jefferson County case
Ryan Summerlin April 25, 2012
ASPEN – A District Court judge has deemed election records in Jefferson County open to public review and has awarded attorney’s fees to Aspen election activist Marilyn Marks, who was denied access to the information.
Judge Randall Arp, in a ruling issued Monday, directed Jefferson County Clerk and Recorder Pamela Anderson to provide the records requested by Marks and rejected the clerk’s claim that release of the information could violate voter rights to an anonymous ballot. Any information that could potentially lead to identification of an individual voter who cast a ballot could be redacted, Arp concluded.
Marks said Tuesday that her legal expenses in the case total about $100,000.
Jefferson is among several counties in Colorado where Marks has asked to view ballots or other election data under the Colorado Open Records Act, or CORA, helping fuel statewide debate about whether ballots cast by voters should be subject to the open-records law.
Marks sued the city of Aspen and City Clerk Kathryn Koch after her request to view ballots or ballot images from the 2009 city election was denied. She ran unsuccessfully for the mayor’s post in that election. The Colorado Supreme Court recently agreed to hear the case after the city appealed a Court of Appeals ruling that sided with Marks.
In Jefferson County, it was the clerk who petitioned the court for direction, arguing that the requested reports don’t constitute public records under CORA. She also said some of the requested records had never actually been generated and that her office shouldn’t have to produce them to respond to a CORA request.
The judge disagreed and noted that some of the requested information was provided to Marks. A three-day hearing on the matter took place in March.
Marks said her interest in auditing Jefferson County’s election data was related to her interest in voting irregularities in Saguache County, which used the same touch-screen voting machines and software as does Jefferson County. However, the former Saguache clerk and recorder has since been recalled, and, Marks said, that county may change its voting equipment. Her need to see the records is less pressing, she said.
Though she’d still like to review the Jefferson County reports, Marks said she won’t push the clerk’s office there to spend a lot of time on her request when it’s preparing for a primary election in June.
“I don’t want them to jump through hoops to have to do it at this point,” she said.
Marks also requested similar electronic records from Mesa County. The clerk there petitioned the court for review, but the case remains unresolved. Marks said she hopes it can be settled.
The Aspen resident said she is frustrated by the cost and additional effort that will be required now that the state Supreme Court has agreed to take up the city of Aspen case, but said she welcomes a decision from the high court that she hopes puts an end to the controversy over whether cast ballots are open to public inspection.
“Maybe hearing from the Supreme Court is what it’s going to take for our election officials to understand. … We have the right to verify our elections,” she said.
Public access to cast ballots is also at the heart of a bill in the Colorado Legislature that was introduced in the Senate in early March but has yet to be heard on second reading.