Will ask Supreme Court to reconsider Marks lawsuit from May ‘09 election
The city of Aspen has decided to appeal a recent ruling against it and in favor of a voting transparency activist to the Colorado Supreme Court.
The Colorado Court of Appeals last week ruled in favor of local resident Marilyn Marks in her suit against City Hall, which refused to release to Marks digital copies of ballots cast in the May 2009 election, in which she was a losing mayoral candidate. The city, in denying Marks’ Colorado Open Records Act (CORA) request to inspect the ballots, claimed that doing so would violate state law guaranteeing secrecy in voting and would cause injury to the public interest.
Judge James Boyd of the 9th Judicial District ruled in the city’s favor in March 2010, granting a motion to dismiss on the city’s argument that releasing the ballot images would violate state law and the state Constitution. A three-judge panel of the appellate court reversed Boyd’s decision in a long-awaited opinion issued last week, ruling that ballots could be lawfully released, so long as there was nothing on them that could be used to identify an individual voter.
Neither court considered the argument that releasing the ballots would cause substantial injury to the public interest, which is grounds for withholding what would otherwise be public record under CORA. The city, in its appeal to the Supreme Court, will argue that the public injury argument should have a full hearing.
“We never got a chance to show there is harm,” Aspen Mayor Mick Ireland said.
The city argues that releasing ballots after each election to anyone who wants to see them — which both sides consider to be the implication of the appellate court’s ruling — would invite a host of negative consequences including fraud and disenfranchisement. For one, vote buying could become a possibility because if someone could mark their ballot in a clandestine manner, and that ballot became public, the person could then prove they voted in such a way. However, Marks correctly points out that marking ballots for such a purpose is illegal. The city argues that the fact that something’s illegal wouldn’t prevent all cases.
The public could also lose confidence in the anonymity of the ballot if even the perception existed that there were analysts capable of cross-checking the ballots with precinct logs to determine who voted how, the city argues.
“At issue in the lawsuit ... is the right of citizens to expect that their cast ballots will remain secret,” according to a city press release issued Tuesday. “The city maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain forever secret.”
There could also be the consequence of never-ending election contests and disputes, especially when freelance recounters were not given all the ballots, because some of those ballots did have discerning markings on them, the city argues.
There is also the issue of how election officials would decide which ballots should be held back because of markings or other identifying characteristics.
“To tell clerks to sift through all ballots ... is crazy,” City Attorney John Worcester said.
Worcester and city special counsel Jim True met with City Council in a closed-door executive session Monday night to consult on whether or not to appeal. A press release announcing the determination — draft copies of which were seen in the hands of city attorneys prior to the executive session — was sent out Tuesday afternoon. City Council was unanimous in its direction to appeal, Ireland and Worcester said, although there was discussion of the pros and cons.
Ireland said he was certain he wanted to appeal shortly after reading the appellate court’s 16-page opinion last week.
Councilman Adam Frisch, while clarifying that he in general supports Marks’ efforts at a higher degree of transparency in elections, said he backed the appeal because the case is precedent setting with statewide implications. The state’s highest court should have the opportunity to sort the issue out, said Frisch, who admitted that he read just parts of the appellate court’s opinion.
A balance must be struck that respects both voter privacy and verifiable elections, Frisch said.
Marks said she was dismayed that the city didn’t take public input before deciding to appeal to the Supreme Court, which could end up costing the city hundreds of thousands of dollars if it loses. The city is spending public time and resources to fight election transparency, she said.
“The secretary of state [Scott Gessler] would tell them they are going to lose this case,” Marks said. “ ... I have a real problem with the process they went through.”
Marks suggested that the city is trying to pull off a massive snow job on the population.
“They think they are going to fool the public here,” Marks said.
At issue is the difference between “anonymous” and “secret” ballots, she said, arguing that secret ballots are not a right, but anonymous ballots are.
“The press release about the right to ‘secret ballots’ is preposterous,” Marks wrote in an email. “The city seems to be arguing that in Aspen, officials may strip voters of their constitutional right to an anonymous, untraceable ballot and replace that hard-won human right with a ballot that is meant to be a ‘secret’ — a secret that Big Brother is supposed to keep.
“When voters hear this ludicrous argument about rights to ‘secret ballots,’ I hope they will understand that the city is claiming that officials have the ‘right’ to know how we vote so long as they keep the ‘secret’ among themselves. The argument smacks of not-so-subtle voter intimidation.”
The Supreme Court has to decide to take the case.
Also at issue are the growing attorney’s fees Marks has racked up, as well as the city through the hours spent by its attorneys on the case. The Court of Appeals ruled that the city must reimburse Marks for her fees, but that directive is stayed until the Supreme Court weighs in. Marks said her attorney’s fees are in the “six figures” but would not elaborate.
When the city won at the district court level, it filed to recoup attorney’s fees from Marks for the time Worcester and True — who are salaried employees — spent on the case. It estimated that their time devoted to the case as of March 2010 was worth $67,047, at $385 an hour.
The Supreme Court, depending on how it decides the case should it chose to take it, could award either party the right to recoup fees, or determine that no such directive is necessary.