The city of Aspen is asking the Colorado Supreme Court to reconsider last week’s order that granted public review of voted ballots in the 2009 election, as well as hundreds of thousands of dollars in attorney’s fees to the plaintiff who brought the case.
The court, which in April said it would hear the case of Mark v. Koch, issued a one-page order on June 28 announcing that it had reversed itself and would not review the case, meaning a Colorado Court of Appeals decision in Aspenite Marilyn Marks’ favor from September 2011 will stand. The city had appealed that ruling to the Colorado Supreme Court in November 2011.
The city is asking the court for a rehearing, arguing that it shouldn’t have to release the ballots from the May 2009 municipal election because a state law, passed in May by the Colorado Legislature that grants access to ballots as long as they cannot be traced back voters, was not yet on the books.
“This legislation in fact emphasizes the assertion of the city that prior to such legislation [the Colorado Open Records Act] did not allow examination of ballots,” Aspen City Attorney Jim True wrote in his nine-page petition to the state Supreme Court.
Marks sued the municipal government 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 Aspen voters later repealed instant runoff voting in favor of going back to traditional runoff elections to decide close races.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, who unsuccessfully ran for mayor in 2009, argued that the ballot copies were subject to public review under Colorado open records law, also known as CORA, but the city denied her request to release them, citing the Colorado Constitution, which requires “secrecy in voting.” City officials have maintained throughout the case that a determined individual could figure out how people voted in some cases using ballots and other public records.
The petition also asks for a hearing so the city can make its argument that it shouldn’t have to pay Marks’ legal bills, which she said are around $275,000 for three years of litigation. The city denied Marks’ request to view the ballots in good faith, True’s petition says, and therefore shouldn’t be liable for Marks’ legal expenses.
“This is something the rules allow,” True said of the city’s decision to seek reconsideration. “We had a legitimate argument and we had the right to make it.”
Marks said the city’s arguments amounted to “complete nonsense.” CORA allowed for public inspection of the ballots all along, she said. As far as attorney’s fees, she agreed that the city acted in good faith, but it should still have to pay her legal bills because it was wrong in concluding that her request could not be granted.
Robert McGuire, Marks’ Denver-based attorney, said the city made many of the same arguments previously, and that he doesn’t think the petition “has a high probability of success.”
The two sides have not had any discussions on the attorney’s fees yet. Marks said she’d be “willing to work with them” and settle for a lower reimbursement amount than $275,000.
Marks said that without the attorney’s fees penalty for incorrectly denying a CORA request, governments would have no incentive to approve open records requests.