Activist wins appeal in case against city

by Curtis Wackerle, Aspen Daily News Staff Writer

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 Aspen voters later repealed instant runoff voting in favor of going back to traditional runoff elections to decide close races.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 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.

Furthermore, the court ruled that ballot images are 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.

Marks said she was “obviously very pleased” by the court’s decision.

“It took a long time to get here, but I think the timing is really very good,” she said. Marks is taking the ruling — should it withstand a potential city appeal to the Colorado Supreme Court — to mean that voted ballots in any Colorado election that are not identifiable are subject to public inspection. That’s good for the 2012 presidential election, where Colorado is an important swing state that is likely to have close contests, Marks said.

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.

The city has 46 days to appeal the ruling before the district court can act, city special counsel Jim True said. Aspen City Council must ultimately decide whether or not to pursue an appeal.

“We believe there are grounds for an appeal,” True said.

Specifically, the court’s decision did not address the city’s argument that releasing the ballot images would cause a “substantial injury” to the public interest, which is grounds for denying an open records request. The city has argued that releasing the ballots would create scenarios where members of the public could use the records to figure out how people voted, and therefore would depress voter confidence.

Robert McGuire, Marks’ Denver-based attorney in the case, said he believes more citizen oversight of elections will be good for voter confidence. He and Marks point out that it is illegal for voters to make any mark on their ballot.

“We read this to mean that ballots are not any different than any other public record, subject to the narrow exception where something is written on the face of the ballot,” McGuire said.