Marilyn Marks: Guest Opinion
July 11, 2012
If you think you lost the plot in the Marks vs. Koch ballot drama, it’s no wonder, given the city of Aspen’s convoluted and conflicting arguments.
You read here on June 29 that the city had “accepted the decision of the Supreme Court” and that Clerk Kathryn Koch loved having “closure,” only to read a few days later that she reversed course and returned to the Supreme Court on July 3, pleading that that the justices just didn’t get it when they rejected the city’s legal arguments.
The conflict between City Council’s words and actions are no less confounding than the conflicting legal arguments in the city’s latest odd petition to the Supreme Court. The city dogmatically insists that the ballot scans must be kept locked in a ballot box away from public scrutiny but then argues that if perchance the court again disagrees, the city should escape liability for my legal costs because the city has always been “uncertain” of whether ballots should be released from the box despite its repeated insistence in multiple courts that ballots are for government eyes alone. Is the council uncertain of its certainty? Or is it certain of its uncertainty?
The past being the best predictor of the future, we should expect that Mayor Ireland will demand that the council continue to fight “to the last taxpayer dollar” using nonsensical arguments, even risking sanctions, and the council will continue to accede to his demands, never asking basic questions or obtaining outside legal advice. More court losses, more wasted money and more delays will follow until Ireland bequeaths this growing unrecorded liability to his successor next spring. Council members who wish to run for mayor are accepting their share of the liability as a campaign issue.
However, the bizarre arguments they will make in their attempt to avoid scrutiny of the election that put four of them in office are unpredictable. Who could have predicted the following?
Like more famous flip-floppers, they were for transparency and broadcasting the ballots on Grassroots TV and in City Hall before they were against transparency claiming that the broadcast ballots are “confidential.”
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The pre-election Ireland claimed that “everyone can count the ballots for themselves,” as all ballots were promised to be available for public review, before the post-election Ireland insisted that ballots can only be seen by government officials.
The city’s confounding official public statement that, “It is correct to refer to the ballots as being ‘anonymous,’ but only as long as they remained locked up.”
The city told the court that they had possession of the only copy of the ballot scans, yet they gave a corporate contractor copies and the original scans to take out of state. The city allegedly later asked the contractor to destroy the scans despite a court order to preserve the records.
The former city attorney announced in a public meeting in 2009 that if ballot scans were released, they would disclose how individuals voted, yet the city claims that they conducted a perfectly legal election.
They showed the ballots on GrassRoots TV, City Hall flat-screen TVs, and to the public and press in the aborted post-election audit. Then they claimed that “the law requires that all ballots and the information they might contain to be kept in absolute secrecy until such time as they are completely destroyed or made available for review by a court.” Grassroots TV doesn’t garner top Nielsen ratings, but their broadcasts don’t qualify as “absolute secrecy.”
Let’s not forget that four of the five council members fired the 2009 election commission when the commissioners asked for outside legal counsel to help sort out the open questions. In the ultimate example of the big smudgy pot calling the tiny kettle “black,” the council alleged that the two commissioners once met privately. Indeed they did, to strategize about demanding a public meeting after Koch refused to call a meeting. In a fit of unbridled consistency, council also denied independent legal advice to the current election commission, making them pay from their own pockets.
Council will likely be predictable in their stubbornness and anti-transparency stance. They will likely try their throw-anything-against-the-wall arguments as they pursue their voter-and-budget-be-damned approach to public policy. Anyone attempting to pry the lid off that 2009 ballot box will find themselves subject to predictable abuse.
You haven’t lost the plot. At any point you pick up the story again, it’s the same never-ending scene in council chambers.
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