Adams County is coming under increasing scrutiny — including the prospect of a legal challenge in court — after County Clerk Karen Long did not disclose that nearly 200,000 ballots in the November election could be traced back to individual voters. Gary Mikes, chairman of the Adams County Republicans, said Long should have come forward about the erroneously marked ballots six weeks ago, when she first detected the problem in late October. Long did not notify the secretary of state’s office of the error until Dec. 9, and issued a news release the next day. “It was her responsibility to inform everybody when she found that out,” Mikes said.
It’s a week after Election Day and they’re still counting votes in Colorado, where some are blaming a new state law that replaced polling booths with mandatory mail-in ballots. Top-ticket races have been decided—Democratic Gov. John Hickenlooper was re-elected and Republican Cory Gardner unseated Democratic Sen. Mark Udall—but the vote totals in a dozen state House and Senate races remain unknown. Democrats currently have a 37-28 majority in the House and are expected to keep it. But they did lose the Senate, where the Republicans will hold an 18-17 edge after being in the minority for a decade. And although those outcomes are unlikely to change once all the votes are counted, there is frustration with the new process, especially among the grass-roots.
Editorials: Colorado Secretray of State Gessler repeals controversial email/internet voting rules | Marilyn Marks/Colorado Statesman
On Thursday, Secretary of State Scott Gessler repealed the controversial email/internet voting rules that had been promulgated for the two recall elections for use by absentee voters. The rules were the subject of much controversy and were challenged in the Libertarian Party’s lawsuit concerning a variety of recall election procedures. While the Denver District Court found some of the recall rules in violation of statutes, Judge McGahey seemed willing to allow the use of email ballots, “for this election.” He ordered that absentee ballots must be made available to everyone without requiring an “excuse.” That ruling was anticipated, as Colorado has been a “no-excuse” state for many years. The use of email rather than mail or hand delivery for absentee ballots would proliferate, and the Secretary quickly decided that this was unworkable and repealed the rule. We applaud his quick decision to provide more security to the recall election processes. The Libertarians (and Citizen Center) had fought the introduction of email ballots for any use other than military overseas with no safer option (that is current law), and true medical emergencies. The original SOS rules issued August 16 allowed email transmission and return of all absentee ballots. After considerable public input, revised rules were issued to decrease the return of ballots by email, but still allow the email delivery of ballots to voters to be returned by U.S. Mail.
Voting Blogs: Another legal challenge? Colorado law mandates a vote on the recall question for a successor vote to count | Recall Elections Blog
The Citizen Center’s Marilyn Marks has pointed out that the Colorado Recall requires that voters must cast a ballot on the yes-or-no recall question if they want to vote for a successor candidate. Just to be clear: Colorado, like California, has what I call a two-step/same-day recall vote — voters cast one ballot which has two parts: step one is the question of “Should this official be recalled?” and step two is “Who should be named as a replacement?” Colorado’s Constitution very clearly states that if you don’t vote on the recall question, any second vote is tossed out and doesn’t count. This is a ripe avenue for litigation, as California had the same provision in 2003. A US District Court tossed it out as unconstitutional (the case was not appealed). San Diego is facing the same question (which may very well be tossed out there as well). This one could be another minefield for the Secretary of State and the local Clerks.
Images of the ballots cast in the 2009 municipal election are available for public inspection now that a four-year legal battle between City Hall and an Aspen resident has come to a close. The city of Aspen made 2,415 ballot images available Thursday on its website, and released them to the attorney for Marilyn Marks, who sued the city for access to the ballots. There were a total of 2,544 ballots cast in the 2009 election; 129 of them have been withheld due to identifying markers that could be traced back to a voter. Marks, who on Thursday said she has not spent much time examining the images posted online, wondered why the city withheld 129 ballots and if officials plan to attempt to make contact with voters who cast them since it’s illegal to make distinguishing marks on a ballot.
Last year, the Pew Center for the States released a report titled “Inaccurate, Costly, and Inefficient: Evidence That America’s Voter Registration System Needs an Upgrade.” Among other things, it revealed that “almost 2.7 million people appear to be registered in two states, and more than 70,000 people could be registered in three or more.” The Colorado legislature isn’t helping matters with House Bill 1303, which has passed both chambers and awaits the governor’s signature. The bill requires mail ballots be sent to all registered voters, whether they’ve cast ballots in recent elections or not — and halted when the ballot is returned or the state learns through other checks that someone has moved or died. One critical backstop is the National Change of Address file maintained by the Postal Service. But in an era in which snail mail is rapidly losing its relevance, particularly for young adults, that file is hardly comprehensive. And yet as Pew points out, “Census numbers from 2009 reveal one in four adults ages 25 to 34 changed residences.” So what happens in homes where, say, a 20-something takes a job in another state? The ballots could just keep on coming.
Colorado: Colorado bill raises the possibility of voter fraud and intimidation, critics say | Washington Free Beacon
Colorado’s Democratic-controlled state legislature is ramming through an election bill that critics say will open the door to voter fraud and intimidation. The “Voter Access and Modernized Elections Act” is expected to pass the legislature this week. Democrats control both chambers of the legislature, as well as the governor’s mansion, meaning the bill could pass without a single Republican vote. The bill is under consideration amid accusations that Republicans in other states have tried to suppress the vote by passing laws that require some form of identification in order to vote.
Election integrity advocate Marilyn Marks has filed a Help America Vote Act (HAVA) complaint with the Colorado Secretary of State’s Office concerning the Saguache County 2012 General Election. The complaint was filed after examination of M-100 machine tapes showed apparent discrepancies in the vote tabulation. Marks’ activities in Saguache County came under fire this summer and fall prior to the general election after commissioners candidates Jason Anderson and Ken Anderson, who later won their election bids made it clear they felt Marks was unjustly interfering in Saguache County business and should butt out.
Colorado: It’s no secret: Judge tosses ballot privacy lawsuit against Larimer County CO | The Coloradoan
A federal judge in Denver ruled Friday that the U.S. Constitution does not guarantee the right to a secret ballot. U.S. District Judge Christine Arguello dismissed a lawsuit brought by voting-rights activists with the Aspen-based Citizen Center that accused Colorado election officials including the Larimer County clerk’s office and Secretary of State Scott Gessler of managing voted ballots in a way that is traceable to individual voters. “Coloradans until today have believed they are entitled to a secret ballot,” said Citizen Center founder Marilyn Marks. “Now we’re being told we are mistaken.”
The election reform advocate who has been blowing the whistle on ballots that can be traced back to voters is claiming that she “broke the code” to Boulder County’s ballot-numbering system last week. But Boulder County Clerk and Recorder Hillary Hall submitted a new, more complex vote-counting process to Secretary of State Scott Gessler this week, and that may make the discovery moot. Marilyn Marks, who filed suit against Gessler and several Colorado counties after it was revealed that ballots could be traced back to voters in Chaffee County, told Boulder Weekly that she figured out how to track voter identities using Boulder County’s system of serial numbers and bar codes, an approach that she says violates state law. The state Constitution says “no ballots shall be marked in any way whereby the ballots can be identified as the ballot of the person casting it.” In response to the Chaffee County discovery, Gessler issued an emergency rule saying counties must stop using numbers on ballots.
Colorado: Can your vote be traced? Boulder County is in the thick of Colorado’s budget battle | Boulder Weekly
The election ballot system used by Boulder County is at the center of a standoff between Secretary of State Scott Gessler and several of Colorado’s county clerks. And someone has to blink soon, since the deadline for printing ballots is fast approaching. In addition to Boulder County Clerk and Recorder Hillary Hall, the players include Marilyn Marks, an Aspen activist who has filed suit against Gessler and a number of counties for using ballots printed with information that can be used to trace the identity of voters, contrary to state law. After being confronted with the outcome of Marks’ investigation, in which she and others demonstrated how to track ballots from a June primary election in Chaffee County to the individuals who cast them, Gessler recently issued an emergency rule saying counties could no longer use the serial numbers or bar codes in question. The rule also requires clerks to black out that information when releasing past voted ballots under the state’s open records act, in an attempt to mitigate the damage done and prevent any further tracing.
Reports of traceable ballots, voting irregularities and a county clerk who was “completely unprepared” for the June primary are prompting concerns about Colorado’s readiness as Election Day draws near in a presidential battleground state. Last week, an elections integrity group asked a federal judge to order clerks in Boulder, Chaffee and Eagle counties to stop marking ballots in a way that allows them to be traced to the person who cast them. If the practice continues, it could lead to election results in those counties — and others that use similar markings — being invalidated, an attorney for the non-profit Citizens Center stated in court filings. Late Monday, Secretary of State Scott Gessler issued an emergency rule prohibiting the markings, saying in a press release “this practice ends today.”
Colorado: Scott Gessler adopts emergency rule to prevent ballots from being traced to voters | Westword
After a voter advocacy group offered proof that county clerks and other election officials could identify how specific people voted — which would violate a citizen’s basic right to a secret ballot — Colorado Secretary of State Scott Gessler announced an “emergency rule” effective immediately that will prevent officials from linking ballots to voters. It’s a big win for activist Marilyn Marks, who has been criticizing the system for more than a year. But at least one county clerk thinks the rule change will only create a whole host of headaches come Election Day. The rule announced late yesterday afternoon is a noteworthy move for Gessler, who has faced numerous lawsuits and considerable criticism from government watchdog groups and other political organizations as the November election nears.
A Colorado voter advocacy group has filed a lawsuit against the Colorado Secretary of State and six county clerks, arguing that ballots in the current system are traceable — violating voters’ right to secret, anonymous ballots. This flaw, the group says, exposes Coloradans to voter intimidation and could discourage people from casting their ballots. But the county clerks deny there are threats to voter privacy and say the allegations put forward by activist Marilyn Marks are not true. “It’s an absolutely fundamental right that we have to a secret ballot,” says Marks, the founder and president of Citizen Center, a nonpartisan, nonprofit group that focuses on accountability and transparency in elections. “If we start thinking about what happens if we lose that right…voters can be intimidated. Voters may stay away from polls. Voters can’t vote their conscience. That’s such an undemocratic proposition. We just cannot let that happen.” Here’s the problem, according to Marks: Election staff can trace specific ballots right back to voters through unique barcodes assigned to each ballot.
Colorado: Aspen City Council forecasts complicated process in viewing voted ballots | Aspen Daily News
Before the public can look at voted ballots from recent city elections, officials will have to go through each one and decide on a case-by-case basis if stray markings could be enough to identify a voter, under procedures being drafted by the City Clerk’s office. In the case that a ballot is marked up enough that it may not be anonymous, City Clerk Kathryn Koch said she will recommend that the person’s votes be copied onto a duplicate ballot without the stray markings. Koch will present her proposed procedure for viewing ballots to the city’s Election Commission, in a meeting tentatively scheduled for late next week. The state Supreme Court ruled in June that it would not hear the city’s appeal in the case of Marks v. Koch, brought by citizen activist Marilyn Marks. She sued the city after it denied her request in 2009 to see ballots from that year’s municipal election. The Supreme Court this week declined the city’s request to reconsider aspects of the case. Marks prevailed at the appellate court level in September 2011 after a local district court judge ruled in the city’s favor. The city fought Marks’ open records request on the grounds that releasing the ballots would violate a state constitutional provision guaranteeing a secret ballot.
A see-saw Colorado legal battle over voter privacy has ended with a win for open-access advocates, who claim that the public’s right to inspect voting results at least equals the right to private voting — as long the ballots can’t be connected to individual voters. The Colorado Supreme Court last week let stand a lower court ruling that gave losing Aspen City Council candidate Marilyn Marks the right to inspect the instant runoff voting information from the 2009 election. While there may not have been as much at stake as in the hotly contested 2000 Gore versus Bush presidential election, Marks cited the inspection of the ballots in Florida as part of her legal arguments in the Aspen case, according to city attorney Jim True. The case was complicated by the fact that the State Legislature changed the with regard to ballot privacy after the election, during the course of the lawsuit. Under the revision, adopted in May, 2012, state lawmakers said they want ballots to be considered open records, viewable by anyone as long as their are privacy safeguards.
The Colorado Supreme Court has declined to rehear the city of Aspen’s appeal of a lower court’s decision that allows public review of voted ballots from the 2009 election. The decision likely ends a years-long legal fight between the city and Aspen resident Marilyn Marks, who sued the municipality and City Clerk Kathryn Koch after Marks’ open records request to review the ballots was denied.
It was a tiny election in the scheme of things. Only 2,544 votes were cast on a quiet May day in 2009. But over three years later, the ballots in the 2009 mayoral race remain at issue, their photographic images locked up in a court fight which may cost taxpayers well over $200,000 if the winner takes all. What has this squabble over ballot inspection proven so far? In the short run, we proved to ourselves that instant runoff voting produced enough of a stink that we booted it. The procedure, run here by a Maryland firm, was supposed to simulate a runoff if no one won a majority. When we learned that there were multiple ways for guessing how people would vote, we decided that an actual runoff beat one run by a computer program. But that race had another by-product. It produced a court battle that seemed rooted in a clash of egos.
The city of Aspen is asking the Colorado Supreme Court to reconsider last week’s order that granted public review of voted ballots in the 2009 election, as well as hundreds of thousands of dollars in attorney’s fees to the plaintiff who brought the case. The court, which in April said it would hear the case of Mark v. Koch, issued a one-page order on June 28 announcing that it had reversed itself and would not review the case, meaning a Colorado Court of Appeals decision in Aspenite Marilyn Marks’ favor from September 2011 will stand. The city had appealed that ruling to the Colorado Supreme Court in November 2011. The city is asking the court for a rehearing, arguing that it shouldn’t have to release the ballots from the May 2009 municipal election because a state law, passed in May by the Colorado Legislature that grants access to ballots as long as they cannot be traced back voters, was not yet on the books. “This legislation in fact emphasizes the assertion of the city that prior to such legislation [the Colorado Open Records Act] did not allow examination of ballots,” Aspen City Attorney Jim True wrote in his nine-page petition to the state Supreme Court.
Did you see the really important Supreme Court judgment handed down on June 28, 2012? No, not the U.S. Supreme Court’s 5-4 ho hum affirmation of the Affordable Care Act. I’m talking about the Colorado Supreme Court’s decision to not hear the city of Aspen appeal of the Marks v. Koch ballots-as-public-records case. If you missed it, after three years, Marilyn wins. By deciding to not hear the city’s appeal, the Colorado Supreme Court confirmed that ballots are public records. Colorado’s citizens can rightfully and independently verify their election results, and clerks, both elected and appointed, need to both keep ballots anonymous and allow for their public inspection. What a concept. Something strange happens to a lot of people once they are elected. All of the sudden their unyielding belief in fairness and equality takes a back seat to anything that might deleteriously impact their political station. So it should surprise no one that a failed candidate took a small but insidious issue to the higher ground of statewide public interest.
Voted ballots are indeed public records open to inspection by any citizen, the Colorado Supreme Court affirmed Thursday, vindicating local resident Marilyn Marks in her three-year-old lawsuit against Aspen City Hall. The court, which in April said it would hear the case of Mark v. Koch, issued a one-page order Thursday announcing that it had reversed itself and would not review the case, meaning a Court of Appeals decision in Marks’ favor from September 2011 will stand. The city had appealed that ruling to the Supreme Court in November 2011. The brief order stated that the court’s initial decision to review the case had been “improvidently granted. Colorado elections once again belong to the people,” Marks said in a statement released Thursday. “This decision puts to rest a long-standing controversy between the public and election officials across the state who improperly prohibit the public and press from verifying Colorado’s elections.”
Election activist Marilyn Marks has prevailed in her quest to inspect ballots cast in the 2009 city of Aspen election. The Colorado Supreme Court has reversed its decision to hear the case, the city learned Thursday morning. That means a Court of Appeals ruling that supports Marks’ position will stand. The state’s high court had agreed in April to hear the city of Aspen’s motion to appeal the Court of Appeals decision. There was no explanation from the Supreme Court regarding its change of direction, but it means the Court of Appeals ruling in Marks’ lawsuit against City Clerk Kathryn Koch, custodian of the ballots, has been upheld. “Marks v. Koch is now clearly the law of the land,” Marks said. “I love closure,” was all Koch had to say about the latest development.
A citizen group fighting election officials in Chaffee and five other counties contends a judge’s order violates the group’s right to obtain public records from the officials. The order restricts the group’s members from requesting records for information the group’s attorney can obtain from the officials, through normal court process, for its lawsuit against them. “A gag order like this one is obviously a gross infringement on our collective rights,” alleged Marilyn Marks, Aspen, the founder of the group Citizen Center. The group is asking Magistrate Judge Michael Watanabe to rescind his June 4 order.
Gov. John Hickenlooper signed legislation today that sets rules for public review of voted ballots — a bill supporters say is necessary to prevent chaos in the November election, but critics call a blow to open government. Election integrity activists, members of the Colorado Lawyers Committee Election Task Force and groups such as Common Cause and Colorado Ethics Watch had flooded the governor’s office with letters asking him to veto House Bill 1036. Several of those opponents plan to file a lawsuit to stop the law from taking effect, activist Marilyn Marks said today. “Based on our familiarity with this bill and its flawed process, we believe that those legal challenges will be successful in striking down this law,” Marks said. “We hope that the litigation will have immediate impact prior to the upcoming elections where full transparency is unquestionably required.” Hickenlooper’s office is expected to issue a statement later today explaining why he signed the bill.
Colorado: Ballot review open only to select parties? – Hickenlooper must decide whether to veto HB 1036 | Colorado Statesman
Gov. John Hickenlooper is weighing a controversial bill that some believe creates a separate class of the public in reviewing ballots following an election, with the aim of maintaining anonymity while also allowing for transparency. House Bill 1036 — which began as Senate Bill 155, but was grafted onto HB 1036 in the waning hours of the regular legislative session — would solidify in statute that ballots are open to the public under the Colorado Open Records Act, but not immediately available to all members of the public. Instead, the bill would create a category known as an “interested party,” which would include political parties and representatives of issue committees, or stakeholders involved in the outcome of the election. Those “interested parties” would be granted access to ballots starting 45 days before any election and until the election is certified, while the rest of the public — including the press and watchdog groups — would be prohibited from reviewing the ballots until the election is certified by county clerks.
A District Court judge has deemed election records in Jefferson County open to public review and has awarded attorney’s fees to Aspen election activist Marilyn Marks, who was denied access to the information. Judge Randall Arp, in a ruling issued Monday, directed Jefferson County Clerk and Recorder Pamela Anderson to provide the records requested by Marks and rejected the clerk’s claim that release of the information could violate voter rights to an anonymous ballot. Any information that could potentially lead to identification of an individual voter who cast a ballot could be redacted, Arp concluded. Marks said Tuesday that her legal expenses in the case total about $100,000. Jefferson is among several counties in Colorado where Marks has asked to view ballots or other election data under the Colorado Open Records Act, or CORA, helping fuel statewide debate about whether ballots cast by voters should be subject to the open-records law.
The Colorado Supreme Court has agreed to hear the city of Aspen’s motion to appeal September’s state Court of Appeals ruling that favored political activist Marilyn Marks’ lawsuit challenging the city’s denial of her request to view ballot images from the 2009 mayoral race. According to the city, the Court of Appeals erred when it held that the Colorado Constitution does not protect the secrecy of ballots. On Nov. 11, the city requested a review of the case by the state Supreme Court. “In elections, there is a functional conflict between two important values: the ability to verify election results and the right of voters to a secret ballot,” the city’s motion states. “All election systems used in the United States since the introduction of the secret ballot in the (late 19th century) have sought to strike a compromise between these two values. In arriving at a compromise, election systems have uniformly given greater weight to secrecy over verifiability.” The motion goes on to say that since 1876, the Colorado Legislature has enacted numerous laws to secure the purity of elections and “guard against the abuses of the elective franchise.”
Colorado: Bar codes allow ballots to be traced back to voters in dozens of Colorado counties | The Colorado Independent
The challenges mounting on Colorado Secretary of State Scott Gessler’s desk go beyond whether to mail ballots to residents who haven’t voted in a while. He has another predicament: bar codes. Unique identifying numbers, or bar codes, that can trace citizens to how they voted appear on ballots in dozens of counties in Colorado — a revelation that is not only troublesome but possibly illegal. Ballots are not allowed to have “distinguishing marks,” according to state law. A coalition of Colorado voters is suing Gessler (pdf) and a half dozen county clerks in a Denver federal court, contending the officials are presiding over unconstitutional elections. The litigation stems from a separate dispute over whether cast ballots should be made public so that elections can be verified by someone outside of government. When clerks argued ballots could not be seen by members of the public because it was theoretically possible to figure out how specific people voted in certain elections, the bar code problem became apparent. “We didn’t think the clerks were serious. We thought they were pulling our leg, putting up a smokescreen,” said Aspen-based election activist Marilyn Marks. “We didn’t think it was true, but it is.”
With Colorado considered a key battleground state in November, the last thing anyone wants is a Florida-style fiasco, supporters of an elections recount bill testified today. Senate Bill 155 sets procedures for public inspection of voted ballots, while attempting to ensure that how Coloradans voted remains confidential. Under the proposal, anyone filing an open-records request to inspect ballots would not be able to do so 45 days prior to an election or 17 days after so that clerks can concentrate on their election duties. Outside that time period, the ballots would be available for inspection. “It is not a stretch to imagine that Colorado could find itself with a very close result in the upcoming election,” said Donetta Davidson, executive director of the Colorado County Clerks Association. “Should that happen, this bill will give Coloradans a road map to inspect the election results without compromising voter privacy. And it is our hope this bill will make us much less likely to see legal battles and inconsistent court rulings.”
Colorado: Scott Gessler targeted by activist over voting in Saguache county and beyond | Denver News
The woman behind Citizen Center, a nonprofit organization that focuses on elections issues and more, is pushing Colorado Secretary of State Scott Gessler’s office to hold a hearing prompted by her complaint about alleged voting irregularities in Saguache County. And today, she plans to announce a broader lawsuit focusing on Gessler and officials in several other counties. Marks’s background? “I used to be the primary owner and CEO of a trailer manufacturing firm,” she says. “I retired to Aspen in 2002 and ran for mayor in 2009 — and that experience caused me to get completely passionate about Colorado’s elections, which are some of the least transparent, most troublesome elections in the country. In the past almost-three years, I have become a full-time election-quality advocate: I have seven active lawsuits going on across the state on election transparency and election quality. And now, I’ve established a nonprofit so that I can continue my work in a more organized way.”