Maurice Emmer: Guest opinion
November 9, 2011
I wasn’t an Aspen resident during the 2009 Aspen municipal election. I first noticed that election when I saw the Colorado Court of Appeals’ opinion in Marks v. Koch. It was a unanimous opinion interpreting the Colorado Open Records Act (CORA) as applied to ballots. It concluded that anonymous ballots are public records available under CORA. It is the highest Colorado court announcement on the issue.
I read the opinion and the parties’ briefs. I found the opinion well-reasoned and supported by law. I questioned why Aspen City Council felt compelled to meet immediately in executive session and, according to press reports, decide to take the case to the Colorado Supreme Court, when the deadline wasn’t for at least 45 days.
I found the city’s explanations for appeal unpersuasive. I learned that serious election problems occurred elsewhere absent citizen oversight. I thought sunshine on election processes was good. I wrote to the papers saying that the city’s insistence on pressing ahead in the case seemed most consistent with: (1) The city was hiding something about the 2009 election; or (2) Nothing was wrong, but the city likes citizens to think it knows how they vote (intimidation).
I discussed the matter with many Aspen citizens. Some are mystified by the city’s actions, while others support the city. When probed about their support of the city, the latter group cites myths, not facts. The public should not inform itself by myths, but by facts. The public and City Council should Think Again.
What are the myths that prevent public understanding? Here are some I have heard repeatedly, followed by my evaluation of each myth:
1. Myth: I don’t want anyone looking at my ballot. Truth: No one is supposed to know it is yours. A ballot cannot be traced to the voter if the city complies with election law. A city’s noncompliance is unconstitutional and possibly a crime. CORA exists so the public can detect noncompliance. The court’s decision exempts traceable ballots. Without citizen oversight – Aspen prevents that now – a city can violate citizens’ civil rights and citizens can’t prevent it.
2. Myth: Only secret ballots are anonymous. Truth: The Colorado Constitution requires ballots to be anonymous, not secret. With the right election procedures, your ballot is anonymous. Anonymous ballots don’t need to be secret to protect the privacy of voters; they can’t be traced.
3. Myth: The appellate court that held CORA doesn’t apply to paper ballots. Truth: The court said the opposite. Any ballot nontraceable is subject to CORA. The holding (the narrow legal issue to be decided) related to ballot images, but the court’s broader legal interpretation unmistakably says anonymous ballots are public records.
4. Myth: Ballots can be used for “data mining.” Truth: No one can define data mining. Political consultants already analyze election results in detail. It is legal. No individual voter’s votes are known from this process.
5. Myth: The appellate court’s decision is not “the law;” only the Supreme Court can interpret the law. Truth: The appellate court neither made nor changed law; it interpreted law. It settled competing interpretations of the law but did not change it. The court’s interpretation is binding throughout Colorado, including Aspen, unless and until the Colorado Supreme Court might act. The secretary of state already sent guidance to county clerks statewide to help them comply with the appellate court’s interpretation. Pitkin and other counties (not city of Aspen) are complying.
6. Myth: Revealing anonymous ballots harms the public. Truth: The city argued that in its court brief. There is a legal definition of harm in this situation and the city of Aspen could not show it was met.
7. Myth: We don’t know the plaintiff’s motives, and she is bitter. Truth: I don’t know why she wants to see ballots, but motive and state of mind fortunately are not issues under CORA. If you wanted to see land records, would you want the motive and state-of-mind police evaluating your request? Would you want your right to depend on whether they liked you? Of course not. That’s why it’s irrelevant under the law.
8. Myth: It won’t cost the city much to appeal. Truth: Nobody can know this. The Supreme Court might refuse the case, which would be cheap. If the Supreme Court takes the case it could take years and a fortune to resolve. Only a fool would predict the cost. Meanwhile, the Court of Appeals’ ruling would remain the law anyway for all ballots (including Aspen’s) except the 2009 ballot images.
Space prevents addressing several other myths, all lacking merit, but you get the idea.
Is this a city to be governed by myths or truth? Do you care whether election integrity can be verified? Do you wonder whether government knows your vote? Consider the facts, then make your views known. It is your city. Think, and then act.