The Colorado Court of Appeals ruled in favor of local resident Marilyn Marks today in her case against the city of Aspen, agreeing with her that digital copies of election ballots are open to inspection by the public, so long as the identity of the voter cannot be discerned.
Marks was seeking to review computer files containing photographic images of the ballots cast in the May 2009 municipal election, in which Marks was a losing mayoral candidate. It was the city’s first and only election using instant runoff voting, where voters rank candidates in order of preference, and the information is used to simulate later runoff contests. Aspen voters later repealed instant runoff voting in favor of going back to traditional runoffs to decide close races.
Marks filed suit after the election, when it was revealed that voting software had miscounted the ballots, resulting in a higher margin of victory for Mayor Mick Ireland than originally reported. Marks argued that the ballot copies were subject to public review under the Colorado Open Records Act, but the city denied her request to release them, citing the Colorado Constitution, which requires “secrecy in voting.”
Judge James Boyd of the 9th Judicial District ruled in the city’s favor in March 2010. Marks appealed.
The 16-page opinion issued by a three-judge panel of the Colorado Court of Appeals found that releasing ballots does not violate the Constitution’s secrecy in voting clause, so long as there is no marking on the ballot that could reveal the identity of the voter.
“ … [W]e conclude that the phrase ‘secrecy in voting’ … protects from public disclosure the identity of an individual voter and any content of the voter’s ballot that could identify the voter,” the opinion says. “The content of a ballot is not protected, however, when the identity of a voter cannot be discerned from the face of that ballot. To the extent the [digital ballot copies] do not reveal a particular voter’s identity, then, permitting the right to inspect [the ballot images] would not be contrary to the ‘secrecy in voting’ provision of [the state Constitution].”
Furthermore, the court ruled that the ballot images were not the same as ballots, as defined by municipal election code. Therefore, the ballot copies are not subject to the same regulations concerning storage and destruction of paper ballots, which apply to election clerks.
The decision could have wide-ranging implications throughout Colorado, as Marks and others have sought to inspect ballots and election records in other areas of the state. Colorado Secretary of State Scott Gessler has stated in the past that he agrees with Marks, but the state county clerks association has vowed to fight determinations that voted ballots are widely open to inspection.
The Court of Appeals decision remands the case back to the district court level with instructions that Marks be granted access to the ballot images she sought. The decision also awards Marks her attorney’s fees for the appellate proceedings.
For more on the decision, pick up tomorrow’s Aspen Daily News.