Aspen resident Marilyn Marks gets ballot images from 2009 |

Aspen resident Marilyn Marks gets ballot images from 2009

Andre Salvail
The Aspen Times

After four years of legal wrangling, Aspen can rest easy now: The saga involving ballot images from the 2009 municipal election is over.

Well, for the most part.

In the election four years ago, a controversial software known as Instant Runoff Voting was employed for the first time in local political contest. Through that system, voters gave not only their first choices for mayor and City Council but also their second. The high-tech system then spit out not only the winners in the general election but decided the runoff victors as well. The results stood, but the city’s electorate later voted to scrap the system.

On Thursday, the city released a vast majority of the ballot images on its website,, following a lengthy court battle with elections activist Marilyn Marks, who finished second to Mayor Mick Ireland in the 2009 mayor’s race. The city also mailed copies of the ballot images to Marks’ attorney, Robert McGuire, of Denver.

Though some critics accused her of wanting to see the ballot images because she wanted to challenge the election results ­— or claimed that her fight with the city was a case of “sour grapes” — Marks said Thursday that nothing is further from the truth.

The city, she said, claimed that the Instant Runoff Voting system would be completely transparent before it was employed in that election, Marks said.

“They said, ‘Everybody would be able to test every ballot on their own,’” she said. “What they didn’t do was use Secretary of State-certified equipment. They used untested equipment with untested software.”

Marks said that when she and others protested, the city continued to claim that the process would be so transparent, anyone would be able to test it after the election.

On election morning, well before the end of the daylong voting period, Marks said she filed a Colorado Open Records Act request to let City Clerk Kathryn Koch know that she would want copies of the ballot images. The city ended up rejecting the request, citing the public’s right to a “secret ballot” in which voters could in no way be identified.

“They started out saying we could have access to the ballot images, then all of a sudden they said we couldn’t,” Marks said.

Complicating matters was the fact that there were problems with the Instant Runoff Voting system. After a recount of the votes, Ireland ended up with a wider margin of victory than he had at first count.

Soon after, Marks filed a lawsuit to force the city to release all the ballot images that were created as part of the election, setting off four years of legal back-and-forth.

A local district court took the city’s side, but Marks turned to the state Court of Appeals, which ruled in her favor. However, the appellate court directed Koch to withhold ballots that contained markings that could identify a voter, including all write-in votes. The city appealed the ruling to the state Supreme Court, which declined to hear the case last year.

The city issued a news release Thursday saying that with the release of the 2009 ballots, 129 have been withheld due to identifying markers.

“The efforts of the city throughout this court case were designed only to assert and protect the right of the citizens of the city to a secret ballot,” the release states. “There was no other purpose. The election was conducted and the votes were counted in a manner that was consistent with the appropriately adopted rules. These images confirm that fact.”

City Attorney Jim True could not be reached for comment Thursday afternoon.

Though the appellate court ordered the city to pay Marks’ legal fees, the amount has yet to be decided. Marks has 27 days to file a motion that establishes what she believes she’s owed. The city will get time to respond.

Marks said Thursday that her legal fees in the case are in the neighborhood of $300,000. It’s not clear how much the city has spent battling her lawsuit.


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