Politics

ASPEN, Colo.—The city of Aspen wants the Colorado Supreme Court to review a recent decision by the state appellate court that would make copies of election ballots available to the public.

In the high-profile Marks v. Koch case, the city maintains that its position is about the sanctity of the secret ballot, according to a city press release. The plaintiff, Aspen resident Marilyn Marks, a frequent City Hall critic, has pursued the lawsuit in the name of election transparency.

The Colorado Court of Appeals rendered its decision on the matter last Thursday, overturning a district court decision in favor of the city.

The issue was first raised after the May 2009 municipal election, in which Aspen voters for the first time in history used a method called instant runoff voting to elect a mayor and two City Council members. IRV used a complex system of ranked voter preferences to determine the winners of the election. When a later handcount of the ballots revealed a discrepancy with the voting software, Marks (who lost to reelected Mayor Mick Ireland in the election) filed a Colorado Open Records Act request for the ballot images with the city clerk. The clerk, Kathryn Koch, denied the request largely on the basis of the Colorado Constitution’s secrecy in voting requirement. Marks then sued the city, arguing that the ballot copies should be publicly available records under CORA.

In March 2010, a 9th Judicial District judge ruled against Marks, who then appealed to the higher court.

In its ruling in favor of Marks, the three Colorado Appeals Court judges agreed that the identity of a voter should be protected. But, they wrote, “The content of a ballot is not protected, however, when the identity of the voter cannot be discerned from the face of that ballot. To the extent the TIFF files do not reveal a particular voter's identity, then, permitting the right to inspect the TIFF files would not be contrary to the ‘secrecy in voting’ provision [of the Constitution].”

The appeals court also ruled that the ballot images are not actual ballots, and they were actually “displayed to the public through multiple media” when the IRV election was reviewed and explained. As such, the court ruled that the ballot images should be released to Marks with the exception of any that could identify an individual voter. The city clerk would have the discretion to decide which ballots could identify an individual voter and thus not be released.

Aspen City Council directed its staff earlier this week to appeal the issue to the Supreme Court, arguing that the issue “is the right of its citizens to expect that their cast ballots will remain secret,” according to the press release.

“The City believes that the Court of Appeals was in error when it held that the Colorado Constitution does not protect the secrecy of ballots,” said the release. “The City maintains it is a citizen’s constitutional right to vote their conscience knowing that their ballot will remain forever secret.”

The Court of Appeals did not rule on the city’s argument that releasing the records could do “substantial injury” to the public, said city special counsel Jim True.

“One of our concerns is there’s a risk of suppression of turnout of voters because of fears of intimidation” if it was known how someone voted, said True, who added that the secret ballot came about because of such concerns and that it’s been adopted by all 50 states.

The city would like the Supreme Court to make a finding on that issue, True said.

It is unknown whether the Supreme Court will take up the case (which the city has until November 14 to file there), but True believes it has a good chance because it involves a constitutional question.

Marks took similar action after elections in Saguache, Mesa, and Jefferson counties. Colorado Secretary of State Scott Gessler has sided with Marks, and in the Saguache County case, a judge there ruled that voted ballots should be made available for public review.

Colorado’s county clerks have vowed to fight the movement to make ballots available for public review, according to the Denver Post.

Whatever is decided, the issue could play out in the 2012 election, which is expected to be close in Colorado. Some point to Florida in the 2000 presidential election as having had a similar high-profile issue that became pivotal in that election.