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 Aspen voters later repealed instant runoff voting in favor of going back to traditional runoffs to decide close races.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