Legislature delves into ballot transparency
The Aspen Times
Aspen, CO, Colorado
ASPEN – Legislation that would regulate the inspection of ballots through an open-records request – an issue that first came to a head in Aspen – was introduced in the Colorado Statehouse last week.
The bill was spawned in large part by Aspen election activist Marilyn Marks’ requests to view ballots or other election-related data in counties around the state, including Jefferson County, where a resulting District Court hearing is scheduled Thursday and Friday. Pitkin County elections manager Dwight Shellman III has been subpoenaed as a potential witness for Marks.
Public access to ballots and whether ballots can be traced back to the voters who cast them are issues that have snowballed out of Marks’ request to view ballot images from the city of Aspen’s 2009 election, in which she lost the race for mayor. Marks filed suit after her request was denied and prevailed at the Appellate Court level. The city has appealed for review of the case by the Colorado Supreme Court.
Subsequently, Marks has become involved in litigation with several counties and in a federal lawsuit that challenges election practices in six Colorado counties.
Among the actions involving individual counties is the Jefferson County case, in which the county petitioned the court to rule on whether the clerk and recorder there, Pam Anderson, properly denied certain requests from Marks related to ballot records. The clerk contends their release would cause injury to the public interest because it threatens to expose how some individuals voted.
The ability to link voters to the ballots they cast is at the heart of the federal lawsuit, filed by the nonprofit Citizen Center, which Marks founded. That lawsuit seeks court action requiring Colorado Secretary of State Scott Gessler and clerks in the six defendant counties – Boulder, Jefferson, Larimer, Mesa, Eagle and Chaffee – to halt practices that violate voters’ constitutional rights to anonymous, untraceable ballots.
While public access to ballots and the associated issue of traceable ballots winds its way through the court system, the state Legislature is taking a stab at regulating ballot access with Senate Bill 12-155, sponsored by Sens. Rollie Health and Jean White, and Reps. Carole Murray and Lois Court in the House. It is scheduled for a hearing next week.
The bill sets for protocols for responding to requests to view ballots through the Colorado Open Records Act and prohibits access to ballots starting 45 days before an election and extending until the results are certified following an election. The restriction doesn’t apply to ballot inspection in the event of a recount.
Provisions of the legislation require election officials to redact ballot markings that may link a voter to a ballot and to deny access to small batches of ballots (nine or fewer) that may be traceable because a small group of voters cast a particular type of ballot within a precinct.
The legislation was drafted with the input of the Colorado County Clerks Association, which supports it, and various other interested parties, including Marks.
Pitkin County Clerk and Recorder Janice Vos Caudill, who accommodated requests from Marks to inspect ballots cast in Pitkin County, said she supports the measure. The legislation would not have changed the procedures she followed to give Marks access to ballots, Vos Caudill said.
No one got everything they wanted in the bill, Vos Caudill added, but drafting the legislation was a collaborative process, and the end result provides a framework for responding to Colorado Open Records Act requests to view ballots, she said.
Marks has urged county clerks across the state to oppose the bill, outlining numerous consequences that she said include muddying the rules for a recount process and making recounts dramatically more expensive for a person or group that requests one. The legislation also will burden clerks with the task of winnowing out ballot styles that have nine or fewer votes on any one candidate or issue, she noted.
Ensuring no identifiable ballots are released will be time-consuming, Vos Caudill agreed.
The bill requires the person requesting access to ballots to pay the costs incurred in providing them.
The bill also appears to take the media out of the recount room, where they have traditionally had a place, Marks contends.
The Colorado Press Association, however, supports the bill, according to executive director Samantha Johnston. With modifications to the legislation, spurred by Marks’ input, the association’s attorneys don’t believe press access to ballots is compromised, Johnston said.
Vos Caudill said she believes the Legislature is the proper venue for addressing public access to ballots and preserving ballot anonymity.
“This should be addressed through legislation, not piecemeal litigation,” she said.
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