A recent Court of Appeals ruling that voted ballots are accessible public records is being put to the test. Marilyn Marks has submitted a Colorado Open Records Act (CORA) request to the Pitkin County Clerk and Recorder’s Office, seeking to inspect a sample of voted ballots from the 2010 election.
Pitkin County Clerk Janice Vos Caudill said she is reviewing Marks’ request with County Attorney John Ely. Her office has yet to decide whether to grant the open records filing, and has asked for seven additional days to respond, while normally she would have to answer in three. The extra time, which Marks said is OK with her, puts the deadline at Oct. 18.
The Colorado Court of Appeals released a ruling on Sept. 29 which sided with Marks in her case against the city of Aspen. Marks sued the city after officials denied her CORA request to inspect digital copies of ballots from the May 2009 municipal election, in which Marks was a losing mayoral candidate. The election was also the first and only in the city to use instant runoff voting, a system where voters ranked candidate preferences and those choices were used to simulate later runoff contests.
The city, in denying the request, claimed that the state Constitution prevented it from releasing the ballots, and that doing so would violate an election law that requires ballots be kept under lock and key, and later destroyed, unless the election is contested via a court order. Marks argued that ballot images are public records suitable for inspection, and that worries about ballots being traced back to voters were unjustified.
Judge James Boyd, chief judge of the 9th Judicial District, which includes Pitkin County, ruled in the city’s favor in March 2010, but the Court of Appeals reversed the decision. The appellate court found that as long as ballots aren’t traceable back to the voter, the constitution does not prevent their release. The ruling instructs the city to release the ballots Marks seeks after a 46-day stay.