Judge tosses lawsuit over Aspen ballot images
ASPEN – A judge Wednesday dismissed a lawsuit filed by Aspen resident Marilyn Marks against City Clerk Kathryn Koch, which attempted to force Koch into releasing ballot images from last May’s city election.
Judge James Boyd of the 9th Judicial District Court dismissed the case, citing the state constitution, which requires the city clerk to keep ballots secret.
The city’s central argument in the legal wrangling that has occurred since last summer has been that it’s against state law to release ballot images.
“We believe it was appropriate to rule in this manner,” said Jim True, the city’s special counsel.
Shortly after the May 5 election, Marks filed a Colorado Open Records Act request for 2,544 digital ballot images cast by Aspen voters so the images can be checked against how the scanning machines interpreted them as part of an independent review to be conducted by an outside group.
That request was denied by the city, which prompted Marks to file a lawsuit in October.
The city filed a motion to dismiss Marks’ lawsuit, arguing several points, including that people have a right to a secret ballot under the city’s home rule charter.
Marks said she expected the case would end up in appellate court because of the likelihood of either side appealing any decision.
“We have always anticipated that the appellate court would be hearing the facts of this case,” she said in a prepared statement. “We look forward to that opportunity where statewide precedent on public records inspection and election oversight will be set.”
Marks ran for mayor against three candidates, including incumbent Mick Ireland. The election marked the debut of the city’s voter-approved instant runoff voting, 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 is an opponent of instant runoff voting. The process ranks candidates in order of preference. She is involved in an effort to review the system and make reforms to the local election process.
The city had argued that Marks’ lawsuit was an attempt to gather information to continue her ongoing campaign of disparaging the local government for the manner in which it conducted the May election and to question the legitimacy of the mayor’s election to office.
Marks has said in the past that she has no interest in contesting the results of the election and is only concerned with election reform.
She argued that it’s unconstitutional not to release the ballots because they weren’t secret – the city released data strings, which show candidate rankings, and images that were flashed on TV screens in council chambers on election night.
In his dismissal order, Boyd recognized that there may be issues related to the election but Marks’ lawsuit was more narrow in that it sought the release of the ballots.
“Plaintiff alleges some irregularities in the handling of the ballots on election night, including possible public displays of some ballots,” Boyd wrote. “These allegations could raise legitimate public concerns about the election but the concerns do not alter defendant’s ongoing obligations with respect to ballots and do not alter the provisions of the statute and constitution requiring secret ballots and limiting the purpose of their use to contest proceedings.”
A trial had been set for March 22, in which both sides planned to call numerous witnesses to the stand.
“We are very confident that the law and facts support our position; we are not terribly surprised by the ruling of the local trial court in this contentious case, although it was surprising coming 12 days before the scheduled trial date,” Marks said in her statement.
The city has 15 days to file a motion in an attempt to collect attorney fees and other costs associated with defending the case, True said.
He said the city hasn’t decided its next course of action.
“We are evaluating the city’s options,” True said.
City officials have spent hundreds of hours on the case. Marks said she has spent close to $70,000 in legal fees, including work by her Denver-based attorney, Robert McGuire.
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