The Colorado Court of Appeals ruled today that electronic images of voted ballots should be open for public inspection, provided the voter’s identity cannot be discerned from the ballot. The ruling could have a major impact on Colorado election law, though today’s decision likely is not the end of the fight.
Earlier this month, Secretary of State Scott Gessler said he would use the court’s decision as guidance to begin the rulemaking process for how public reviews of voted ballots should be conducted. Gessler has said that public access to voted ballots will improve transparency, and therefore increase voter confidence in elections.
Colorado’s county clerks association has maintained that ballots should be secret, and not subject to the Colorado Open Records Act. They have said they will fight efforts by Gessler or the public to review voted ballots, either in court or the General Assembly. Today’s ruling stems from a case filed in Pitkin County by election activist Marilyn Marks.
Marks was one of multiple candidates who ran for Aspen mayor in 2009. For the first time, Aspen used a computerized tabulation system to determine the winner through new “instant runoff voting.” Voters ranked candidates, and the computer system used those rankings to determine a winner, avoiding the need for a second, runoff election.
Marks was among the losing candidates. About a week after the deadline to contest the election, the clerk disclosed that there had been a discrepancy between the results tallied from the paper ballots and the electronic images created by the new system, so that the winning candidate actually won by more votes than originally announced.