Voted ballots are indeed public records open to inspection by any citizen, the Colorado Supreme Court affirmed Thursday, vindicating local resident Marilyn Marks in her three-year-old lawsuit against Aspen City Hall.
The court, which in April said it would hear the case of Mark v. Koch, issued a one-page order Thursday announcing that it had reversed itself and would not review the case, meaning a Court of Appeals decision in Marks’ favor from September 2011 will stand. The city had appealed that ruling to the Supreme Court in November 2011. The brief order stated that the court’s initial decision to review the case had been “improvidently granted.”
“Colorado elections once again belong to the people,” Marks said in a statement released Thursday. “This decision puts to rest a long-standing controversy between the public and election officials across the state who improperly prohibit the public and press from verifying Colorado’s elections.”
Marks’ attorney, Robert McGuire of Denver, said in the statement that the “welcome decision ... reconfirms the vitality of the Colorado Open Records Act as a powerful tool that permits ordinary Coloradans to hold their state and local governments accountable.”
Marks’ statement noted that the Court of Appeals decision allowed her to recoup attorney’s fees from the city. Each party has invested well over $100,000 on the case, she said.
“I trust that the city will want to put this controversy to rest and that we can come to a reasonable settlement without controversy that would be a further waste of public funds,” Marks said in the statement.
Marks sued the city and City Clerk Kathryn Koch after the city denied an open records request to review digital copies of ballots from the 2009 municipal election. 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 Aspen voters later repealed instant runoff voting in favor of going back to traditional runoff elections to decide close races.
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.” The city has maintained throughout the case that a determined individual could figure out how people voted in some cases using ballots and other public records.
Judge James Boyd of the 9th Judicial District ruled in the city’s favor in March 2010. Marks appealed Boyd’s decision to a higher court.
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].”
The ruling gives election clerks the discretion to decide what constitutes a marking that could identify a voter.
The state legislature this year passed a law essentially codifying the appellate court’s ruling.
The city released a statement Thursday saying it was “disappointed” in the court’s decision.
“However, it should be noted that the only concern of the city regarding this case was the degradation of the citizens’ right to a secret ballot,” the statement from City Attorney Jim True says. “With safeguards put in place by the Court of Appeals and state Legislature that concern was lessened.”
The city added that it will “obviously comply with the decision of the court of appeals” and allow Marks access to the 2009 ballots. She has also requested to see ballots from the 2011 city election. True said he was confident any review would confirm the validity of election results.
True speculated that the Supreme Court may have reversed its decision to hear the case because of the law passed by the legislature.
For the city, if there is a positive out of the final disposition of the case, it’s that “we can put the 2009 election behind us,” True said.