After losing at the Colorado Court of Appeals, the city of Aspen on Friday filed to the state Supreme Court its appeal of a ruling that would allow election ballots to be released if they are kept anonymous.
The move was not surprising, as Aspen City Council was unanimous in its support for the appeal. Officials believe voters should know that the ballots they cast “will remain forever secret,” according to a city press release issued Friday.
Aspen City Attorney John Worcester also said this week, regarding the decision to appeal to the high court, “It’s against the law to release the ballots.”
The three-member panel of the Court of Appeals ruled in late September that ballots could be lawfully released, so long as there was nothing on them that could be used to identify an individual voter. The ruling reversed the decision by Chief Judge James Boyd of Pitkin County District Court, where the lawsuit by Aspen resident Marilyn Marks was filed in 2009.
That year, she finished second in the mayor’s race after years of maintaining that the city ought to be more transparent in its operations and that it can be better run financially.
After winning at the appellate level, Marks said at the time that she was dismayed that City Council didn’t take public input before deciding to appeal to the Supreme Court. The city could end up spending hundreds of thousands of dollars in public money to fight election transparency, she said at the time. Marks didn’t respond to messages left about the city’s action Friday.
Worcester said in the past three weeks he has spent 50 percent of his time on Marks’ lawsuit, writing the appellate brief and answering questions from council members.
“We’re spending an inordinate amount of time on the ballot issue,” he said.
Marks argues that secret ballots are not a right, but anonymous ballots are. The city, however, contends that releasing the ballots, even if they’re kept anonymous, will substantially injure the public interest. That reasoning is one basis for legally denying a request made under the Colorado Open Records Act. The city refused to release to Marks digital copies of ballots cast in the May 2009 election, which for the first time was conducted using the instant runoff voting method. Marks wanted to inspect the ballot images to cross check and ensure the election was done correctly.
Consequences of releasing the ballots, according to the city, could include: vote buying, the public losing confidence in the anonymity of ballots, endless election processes, and the problem of election officials deciding which ballots should be held back because of markings or other identifying characteristics.
“The city believes that the Court of Appeals was in error when it held that the Colorado Constitution and state law do not protect the secrecy of ballots,” the press release says. “For more than a century, laws in all 50 states require elections to be held by secret ballot.
“Because the decision of the court of appeals would have important ramifications for all future elections if allowed to stand, the city believes that it is important to have the Supreme Court review the lower court’s decision.”
The high court will eventually decide whether it will hear the city’s appeal, a process that could last into 2012, the release says.