Sally Spaulding: Guest opinion
August 21, 2009
The city of Aspen has not released the ballots or images of the ballots for the 2009 spring election because we have a legal responsibility rooted in the state constitution, statutes and Supreme Court decisions to protect every citizen’s right to a secret ballot.
While we understand the desire of journalists to publish every available record, and the interest and curiosity of some in seeing ballot images, those interests must be balanced against the clear mandates of the Colorado Constitution and law that have evolved over the last century of experience with the privacy of the ballot.
After thorough and significant review, the city attorney has concluded that the release of the ballots, or their images, would violate state law. Colorado, along with every other state in the country, began to guarantee the secret ballot to its citizens at the end of the 19th century. Every state and almost all jurisdictions have adopted laws and rules to ensure that ballots are cast in absolute privacy and remain secret even after the election is completed.
Voters are barred from disclosing their own ballot to other people. This law discourages the buying and selling of votes and demonstrates that the interest in ballot privacy is more than an individual right.
The city clerk is required to maintain and protect ballots for a period of six months after an election or until the time for an election contest has passed. At the end of that time, the city clerk is required to open the ballot box and ensure that the ballots are destroyed “by fire, shredding or burial.”
The state constitution allows ballot boxes to be opened after an election only in the case of a contested election and then only under the supervision of a court. Even when there is a contested election, the courts will not permit ballot boxes to be opened unless there is some demonstrated evidence of fraud. No allegation of fraud has been made in the city of Aspen’s election, and no evidence has been presented that the final count of the ballots was inaccurate.
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Absent evidence of fraud and court supervision, election ballots are not made available for public inspection for any reason. The city attorney is aware of no municipality in the state of Colorado that has allowed the public to inspect ballots, or copies of ballots, absent a court order, since the state constitution guaranteed the secret ballot more than a century ago.
The U.S. Supreme Court has made it clear that protecting ballots from disclosure protects not only privacy but also ensures that election results are final and not subject to second-guessing and challenges months or years after the time for challenge has expired.
The Colorado Open Records Act (CORA) specifically exempts any inspection of public records that “would be contrary to any state statute.”
The city has made available for public inspection records containing all the information that a person would need to determine how each and every ballot was tabulated. An audit of 200 ballots showed no discrepancies between the publicly disclosed data and the ballots themselves. That publicly available information does not make it possible for anyone to connect the individual ballots to individual voters. Keeping a voter’s choices a secret is the responsibility of the city clerk. No legally valid purpose would be served by “opening the ballot box” at this time.
Transparency is an important means to understanding and controlling government but is not, in and of itself, the only goal of government. Aspen has an obligation to comply with the mandates of the constitution and statutes, and that outweighs the curiosity of journalists or groups with an interest in advocating various election methods.
Complying with the law and fulfilling our obligation to the public is not a “shallow or contrived” excuse for not releasing the ballots – it is our duty. For a more detailed explanation, or to find public inspection records of the election, visit http://www.aspenpitkin.com and click on the city clerk’s home page.
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