A vote for compromise
October 31, 2011
Today is Election Day, and most Aspenites are thinking about voting, the issues and candidates, the importance of having the right to a secret ballot, and the public’s right to have access to public records.
The Instant Runoff System used in our 2009 municipal elections saved money, saved time for the candidates and the community, and inspired a strong voter turn out. On the other hand the system was in large part unproven, complicated and required the participation of outside experts, who were probably not as good as the city had hoped. Though Instant Runoff was chosen by the people of Aspen, it will probably not be used here anytime soon.
I am not an election expert, and have not done the heavy intellectual lifting done by so many other interested parties. I have followed the letters to the editor and the fast and furious email exchange.
I would like to propose a compromise that could have a salubrious effect on this on going controversy. My suggested resolution calls on the two primary players, Marilyn Marks, the losing mayoral candidate in the 2009 election and winner of the Court of Appeals recent decision, and the city of Aspen, led by our current mayor, Mick Ireland, to each give up a little of her and his long held beliefs. I believe this controversy is so mired in the personal stake in that election by Marilyn Marks and Mayor Mick Ireland, that it is difficult to any longer measure the merits of the arguments.
The appeals court says the public can look at the 2009 ballot images, so long as the ballot cannot reveal a voter’s identity. The City Council determined a couple of weeks ago that they would appeal this decision to the Colorado Supreme Court. As I understand it, the city has until Nov. 15, 2011 to file its appeal or intention to appeal.
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It also seems clear that even if the city appeals, the existing decision will hold sway in Colorado until the Supreme Court first decides to take the case and then to weigh in on the controversy. It seems apparent that the appeals court decision will prevail until a new ruling is made by a higher court.
Marilyn Marks has won her appeal, which might be a Phyrric victory at best. I propose that now she collect her mutually agreed-upon legal fees from the city, save on any future legal fees regarding the 2009 election and sign an affidavit not to sue or press the city clerk for access to those 2009 ballot images forever. She essentially decides to accept the 2009 election results, and put aside her belief that real irregularities occurred in the spring 2009 election.
The city pays the mutually agreed upon legal fees of Marilyn Marks. The city agrees not to contest the recent appeals court decision ever. Though the city attorney and assistant attorney are quite competent and are experienced with handling ballot challenges, it would appear that it might be necessary to bring in outside counsel and experts who are schooled in the intricacies and arcane interpretations of elections, election challenges and particularly elections involving instant runoff ballots. The city’s appeal could easily extend for at least two years, and the city’s legal and financial commitment could run into the hundreds of thousands of dollars. For the time being the Instant Runoff system would be put to rest, and perhaps the ballots of that election could even be destroyed. The city would suspend its disbelief in the appeals court decision.
It is dubious that one side or the other in any public forum will be fully convinced by the arguments about all the issues: ranging from secret vs. anonymous, marks on ballots, voter identity tied to ballots, interpretation of the Colorado Open Records Act, those unusual situations when a voter’s identity might be compromised, and the efficacies of Instant Runoff Voting.
In my view it is these kind of gnarly controversies that become so contentious that altogether too much valuable time and energy are spent, and an enormous investment of the city’s money and legal brain trust is devoted to a possible decision down the road, which in the final analysis might not even fully settle the issues at hand. If the city lost its appeal, I reckon it could next go to the U.S. Supreme Court. May level heads now prevail on each side, and let’s not have a major legal battle that might restrict the public’s right to access public records.