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Colorado appeals court decision upholds open records law

Posted: Thursday, Sep 29th, 2011

DENVER — In a long awaited decision released Thursday morning, the Colorado Court of Appeals ruled in favor of ballots and ballot copies as public documents and ordered the City of Aspen to turn over 2,544 photo images of the ballots to a former candidate.

In 2009, Aspen resident Marilyn Marks ran for the city’s mayoral position. The race was conducted using computerized ballot technology and Aspen engaged a Maryland firm, TrueBallot, Inc (TBI), to tabulate the ballots and make digital copies of each one. These images were then randomly displayed over public video monitors and on news broadcasts to ensure greater election transparency.

Aspen Municipal Clerk Kathryn Koch arranged for the broadcast of the images. In fact, as the appeals court decision relates, “She assisted in the tabulation process by delivering the paper ballots to TBI in a previously agreed-upon manner so that portions of the TIFF files, once created, could be publicly displayed. [The] clerk subsequently disclosed that there was a discrepancy between the manual tallies of the paper ballots and TBI’s computer-generated data, such that the winner of the mayoral race received more votes than initially stated.

“Clerk [Koch], however, did not publicly disclose this information until nine days after she learned of it - which also happened to be almost a week after the expiration of the statutory deadline to contest the election.”

When she heard the news of the discrepancies, Marks presented Koch with a Colorado Open Records Act Request for the images of the ballots cast in the race. Koch refused to honor the request on the grounds that “(1) the TIFF files, being duplicates of ballots, were in fact ballots themselves, (2) releasing the TIFF files would violate the Colorado Constitution’s secrecy in voting requirement, which [the] clerk interpreted to bar the public disclosure of the contents of ballots,” according to the appellate decision.

Marks then sought a court order to enforce her CORA request, but the district court in Aspen ruled in Koch’s favor. Marks then appealed the ruling and won the appeal. Koch has not commented on whether or not the city will appeal the decision to the Supreme Court.

How decision affects current CORA cases

In August, Secretary of State Scott Gessler won the suit he filed in March against Saguache County Clerk Melinda Myers to gain access to the ballots from the 2010 Saguache election and allow citizen judges and watchers to count and examine those ballots. The citizen review Gessler promised Saguache voters took place Aug. 29-31.

District Judge Martin Gonzales, ruling in Gessler’s favor, stated in his decision that: “Voted ballots are not per se privileged. Voted ballots are ‘election records, Section 1-1- 104 (11), C.R.S. 2010. (‘Election records’ includes but is not limited to accounting forms, certificates of registration, pollbooks, certificates of election, signature cards, all affidavits, mail-in voter applications, mail-in voter lists and records, mail-in voter return envelopes, voted ballots, unused ballots, spoiled ballots and replacement ballots.’)

“This definition is incorporated into the Colorado Open Records Act (CORA), Section 24-72- 204(8)(c)(II), C.R.S. (2010)...CORA exempts only certain election records from disclosure...An election record, including a voted ballot, may be disclosed as long as the identity of the voter is not disclosed.”

The appeals court ruling confirms Gonzales’ decision. “Hence, we conclude that the phrase ‘secrecy in voting,’ when read in conjunction with the clauses described above, protects from public disclosure the identity of an individual voter and any content of the voter’s ballot that could identify the voter. See Danielson, 139 P.3d at 691. 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 article VII, Sec. 8.”

Marks filed suit against Myers earlier this year to obtain CORA-requested documents that include electronic copies of voting device tabulations transferred via zip disk to a laptop computer used by Myers office to back up 2010 election results. Marks request was filed following circumstances very similar to her mayoral run, with Myers announcing that there were errors in the results of the Saguache election.

Gonzales’ decision notes that CORA forbids only the release of election records only when such records would allow unauthorized individuals access to “a person’s original signature, social security number, month of birth, day of the month of birth or identification.” The records Myers is withholding from Marks do not show these details. And the records Marks requested from the Jefferson County and Mesa County clerks in August, which both clerks refused to produce, also would fall under the appeals court ruling of what clerks are required to release under CORA.

In a recent editorial for the Grand Junction Sentinel Mesa County Clerk Sheila Reiner wrote: “The largest part of her [Marks’] request contains electronic images of votes cast on iVotronics (touch-screen voting machines) from our 2010 general election. We are unable to fulfill this part of her request. We strongly support the right of every voter to have a secret ballot.”

And yet the appeals court ruled Marks must be granted access to 2,544 “electronic images of votes cast,” stating that such images “are not ballots,” as Marks initially contended in her appeal to the court.

“This case should pretty much decide the Mesa and Jefferson County cases,” Marks’ attorney Robert McGuire said. McGuire filed the cases for Marks against the two counties, also appeals case and the case against Myers. He also commented that because the appeals court decided with Judge Gonzales that ballots are public records, “it seems to me that there’s no question the report we asked for is open to public inspection.”

Overall, McGuire said, the appeals decision has vindicated CORA rights statewide and positively impacted every other case in the state. This also will mean that the upcoming recall election for Myers will be fully open to public scrutiny.

Still uppermost, however, in Marilyn Marks’ mind is the rising cost of the ongoing suit with Saguache County. Marks was awarded attorney’s fees payable by the City of Aspen in the appeals decision, which are “sizable” she said.

In the earlier stages of the suit, Marks said, “The City of Aspen incurred over $70,000 in attorney’s fees” She estimated that the appeals court process brought each party’s fees into six figures each. She pointed out that the Saguache case is even more complicated and costly. Not only is she fighting Myers, Marks said, she also is battling with Election Systems & Software, manufacturer of the M650 voting device that produced some of the documents Marks seeks in her CORA suit.

“With the City of Aspen it was only one [set of] documents,” Marks said. “Clerk Myers has withheld dozens of documents. I am shocked that Saguache County Commissioners are risking such significant sums their constituent’s tax money to block transparency.”

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