Aspen’s Marks sues for release of city’s May ballots
October 10, 2009
ASPEN – Aspen resident Marilyn Marks’ crusade to review the ballot images from May’s city election has landed in court.
Marks filed a lawsuit Thursday, against Aspen City Clerk Kathryn Koch, asking a judge to order the city show cause for its reason to withhold photographic ballot images from the election. If the city can’t show cause, Marks’ complaint demands that she be allowed to inspect the ballot images.
Marks ran for mayor in the May election against three candidates, including incumbent Mick Ireland. The election marked the debut of the city’s voter-approved Instant Runoff Vote, which pitted Marks against Ireland. Ireland prevailed with 1,301 votes, or 53.6 percent. Marks received 1,124 votes, or 46.4 percent.
Marks did not contest the outcome, but it provided her the springboard to contest the IRV method. Since her defeat she has argued to hold a June runoff if the mayor and council members don’t receive a majority vote in the May elections. An advisory vote on the matter will go to Aspen voters in November’s mail-in election.
Meanwhile, her complaint also seeks a temporary restraining order and injunctive relief to stop the city from destroying records from the election. Her suit claims the city plans to destroy the records no later than Nov. 5 – exactly six months after the May 5 contest.
The city has contended that releasing the ballots would compromise ballot secrecy entitled to voters under the city’s home-rule charter. It has maintained that some voters’ identities could be revealed because of unique markings on the ballots in question.
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Marks, however, has argued that the ballots became public record when their digital images flashed on the screens in City Council chambers on election night. She has also countered that the identity of the voters can’t be revealed because no names were attached to them.
Marks put out a press release Friday summarizing her complaint, which was filed in Pitkin County District Court, and per position on IRV.
“It is important for Aspen and other communities currently considering IRV elections that the records not be destroyed as they are needed to created solutions for problems one would expect to find when using new elections methods,” she said. “The city’s planned near-term destruction of these records forced this litigation.
“I had hoped that this would be resolved without the expense of lawyers and dependence on the court. However, the city has shown no willingness to cooperate with an election review designed to work toward future improvements.”
Marks had already filed a Colorado Open Record Act request for a portion of the ballot images cast by Aspen voters so they can be checked against how the scanning machines interpreted them as part of an independent review to be conducted by an outside group.
Her suit was filed by Denver attorney Robert A. McGuire. Koch and city attorney John Worcester could not be reached for immediate comment Friday.