Court sides with city of Aspen on ballot issue
August 2, 2012
ASPEN – The saga involving elections activist Marilyn Marks and the city of Aspen over the right to inspect voter ballots continues.
In a ruling issued Tuesday, Pitkin County District Court Judge Gail Nichols sided with the city on issues related to the May 2011 municipal election, which featured races for mayor and City Council.
In November, Marks – a 2009 mayoral candidate who has prevailed in a lawsuit against the city over the right to inspect ballot images from that election – and fellow activist Harvie Branscomb, of El Jebel, submitted a Colorado Open Records Act request to the Aspen Election Commission to allow them access to inspect the actual paper ballots from the 2011 election.
But Aspen City Clerk Kathryn Koch, through the City Attorney’s Office, denied the requests on the grounds that compliance would violate state and city law. The city has maintained that Koch, not the Election Commission, is the custodian of the records.
When Marks and Branscomb threatened to sue, Koch and the city filed a motion for summary judgment with the District Court, saying the ballots were exempt from public inspection based on open-records regulations.
Marks then moved to dismiss the city’s request for summary judgment on the grounds that the commission should have been joined in the matter.
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On that issue, Nichols ruled that the absence of the commission, which includes Koch, as a party in the city’s request for summary judgment “will not impair or impede the commission’s interest because the commission has no interest” in whether the ballots are released for inspection.
Nichols based her conclusions partly on the fact that the commission discussed the matter and decided that “based on the advice of independent counsel, they had no authority to act” with regard to the release of the ballots. She also wrote that the commission “chose not to intervene in this matter despite having knowledge of the pending litigation.”
“Accordingly, the court finds the commission is not a necessary or indispensable party,” Nichols wrote in her order. “Marks’ motion to dismiss will be denied.”
As for the city’s request for summary judgment, Nichols wrote that the state law at the time of Marks’ motion contains no provision for making ballots available for public disclosure or inspection.
“If anything, the statute expresses a policy against allowing public inspection of paper ballots,” she stated. “The court recognizes that (state law) does not expressly prohibit inspection, but its terms, read as a whole, assume and strongly suggest that the inspection of ballots is prohibited.”
Reached for comment Wednesday, Marks said the court’s decision was “wrongly decided,” in her opinion.
“I assume that the city will agree with that analysis, as well, as they had already concluded that the 2011 case was moot, given the clarifying 2012 (state legislation) placing more restrictions on ballots but reaffirming they are public records,” she said in a prepared statement. “As the 2012 Legislature affirmed, maintaining ballots as open records is a matter of statewide concern, as it has been since 1967 when Colorado’s open-records law was passed.”
In Marks’ view, the Aspen City Council in 2011 – just prior to the May municipal election – modified the city election code against her and others’ objections, “to attempt to slam shut the ballot box to any verification of the elections by the public or press. This is the flawed local law they presented to the court and the court assumed to be valid.”
Marks continued, “It appears that the court failed to recognize that the city charter incorporates Colorado’s Open Record Act, and in any event there is new state law that trumps any claim by Aspen that (ballots) are exempt from Colorado’s open-records laws.”
She said she doubts that the city will continue to claim that Nichols’ decision on the 2011 ballots is correct, given this year’s changes to state law regarding public access to ballots and the Supreme Court’s recent refusal to weigh the 2009 case.
In July, the Colorado Supreme Court rejected the city of Aspen’s petition for a rehearing in the 2009 ballot case initiated by Marks. The court already had reversed its decision to hear the case of Marks vs. Koch, allowing a Court of Appeals decision in Marks’ favor to stand.
The city then filed a petition to ask the state Supreme Court to reconsider its decision not to take up the case; the high court declined.
Should the city continue to put forward that the 2011 ballots cannot be accessed, Marks said, “We will of course be required to file motions with the court for reconsideration or appeal. It is critical that Aspen’s elections be just as transparent as every town, city, school district, fire district or county in the state.”
Marks also brought up the issue of attorneys’ fees.
“One of the most troublesome aspects of the city’s position is their attempt to claim attorney’s fees against Harvie Branscomb and me for merely filing a public-records request that reflected the state of the law for election verification,” Marks said. “Such threats have a chilling effect on the press and average citizens when they must fear court action from a city with an unlimited legal budget if they seek to exercise their rights to public records.”
City Attorney Jim True said Marks recently made a request under the new state law to examine the 2011 ballots.
“We were prepared to go through the process to allow that inspection, and she objected to some of our efforts, so we just haven’t had a meeting yet to start the process,” he said. “We’re not going to deny her the right to inspect the 2011 ballots under the new law.”