Colorado: Voters file suit against Gessler, six county clerks over ballots | The Denver Post

A group of Colorado voters filed a federal lawsuit against Secretary of State Scott Gessler and six county clerks today, saying their election practices are unconstitutional because they allow some ballots to be traced to the person who cast them. The lawsuit, filed in U.S. District Court in Denver, argues that voters in those counties are being deprived of their right to a secret vote, and asks a federal judge to order the practices stopped. “The right to a secret ballot is a revered principle of American democracy,” said Marilyn Marks, a voting integrity activist who founded Citizen Center, the group that filed the lawsuit. “No one, most particularly government officials, should have access to information that can connect ballots with voters,” Marks said.

Voting Blogs: Saguache, CO Ballot Dispute: New Clerk, But Same Old Controversy | Doug Chapin/PEEA

On January 24 Saguache County, CO voters overwhelmingly recalled County Clerk Melinda Myers. Myers had been under fire ever since presiding over a hotly-disputed 2010 election in which preliminary results – which showed some candidates, including Myers’ GOP opponent, leading – were ultimately reversed due to reported machine problems and other errors. Although a grand jury found no evidence of criminal conduct, the 2010 election led to a long-running battle involving Myers, local activists, election officials and the courts about whether and how to allow scrutiny of voted ballots in the name of transparency.

Colorado: Traceable ballots could sabotage Colorado elections in 2012 | Center Post Dispatch

As Colorado shapes up to be a swing state during the 2012 General Election, suggested changes to Secretary of State (SOS) rules governing election integrity and transparency could further endanger Coloradoans’ rights to an anonymous ballot and honest elections.

Those hoping for a fair election outcome in a crucial race for the White House will instead probably face relaxed security precautions for already compromised electronic voting devices. They also could be faced with a Colorado Open Records Act (CORA) blackout that would deny access to key election documents for nearly 90 days during the election cycle.

The CORA block would prevent poll watchers, media, and ordinary citizens from examining ballots, and would delay and restrict examination of logs, poll books, and other essential election information in the event of a disputed election. This even after Colorado Sec. of State Scott Gessler won a lawsuit in August 2011 against Saguache County Clerk Melinda Myers, with District Judge Martin Gonzales ruling that ballots are public records and Gessler as well as ordinary citizens have a right to request and inspect them.

Voting Blogs: Colorado’s super-secret ballots | State of Elections

Colorado is currently in the midst of a heated legal dispute over whether images of local ballots should be made available for public scrutiny in an election dispute. The controversy started in 2009, when Marilyn Marks lost the Aspen city mayoral election to Mick Ireland. Marks petitioned to view images of the anonymous ballots (sometimes referred to as TIFF files), but the city denied her request.

She then filed suit in state court under the Colorado Open Records Act (CORA), but the district court ruled against her. She appealed to the Colorado Court of Appeals, which reversed the lower court in September of this year, holding that the contents of the ballots should be released.

The substance of the issue is that the city contends that the images constitute ballots, and thus are barred from public release by the provision of Colorado’s constitution which protects the secrecy of ballots as well as local regulations as to the disposal of ballots. The Court of Appeals’ holding rejected both of these arguments, holding that the images are not ballots, and that the state constitutional protection only extends to the identity of the voter, not to the substance of the ballot.

Colorado: Ballot transparency a statewide debate | AspenTimes.com

A candidate’s request to inspect ballots cast in Aspen’s 2009 municipal election has set in motion similar efforts around Colorado. The end result might be new rules that govern the review of ballots or that withhold them from public inspection altogether.

Meanwhile, Aspen resident and 2009 mayoral candidate Marilyn Marks is expected to review on Tuesday 100 ballots cast in Pitkin County’s Nov. 1 election. Rather than simply eye the ballots, though, Marks has suggested that county Clerk and Recorder Janice Vos Caudill and a group of election officials look over 100 to 200 ballots with Marks and discuss whether any of them are “identifiable.”

The potential to link a voter to a particular ballot via various election information that is available to the public through the Colorado Open Records Act (CORA) has emerged as a concern among county clerks across the state as they respond to ballot requests from Marks and others.

Colorado: Election Commission punts request to view ballots | AspenTimes.com

The battle over ballots at Aspen City Hall continues. On Tuesday, the Aspen Election Commission decided to punt on two public-records requests to view ballots that were cast in the city’s 2011 municipal election held in May.

Commissioner Ward Hauenstein said that while he favors an open and transparent government, he received outside advice from a Denver attorney who said the Election Commission could not rule on the matter because it isn’t the custodian of election records.

“According to information provided by you, the Aspen Election Commission does not have personal custody of the paper ballots in question,” attorney John S. Zakhem wrote. “Therefore, the [commission] is not the custodian of the paper ballots and is not obligated to produce them in response to the [Colorado Open Records Act] request.”

Colorado: Aspen files to appeal ballot-images ruling | AspenTimes.com

The city of Aspen has officially filed a motion to appeal a recent 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 mayor’s race. According to the city, the Court of Appeals erred when it held that the Colorado Constitution does not protect the secrecy of ballots. The city’s filing of a “writ of certiorari” to the state Supreme Court does not mean the higher court will consider the appeal.

The motion carries Wednesday’s date, beating the Monday deadline to appeal the ruling by five calendar days. City Attorney John Worcester and Special Counsel James R. True are listed as the attorneys for the petitioner, the city of Aspen and City Clerk Kathryn Koch.

Colorado: Aspen election commissioner wants outside opinion | AspenTimes.com

A member of the Aspen Election Commission said he is seeking a “second opinion” from an outside attorney on whether the commission should approve two public-records requests to inspect paper ballots cast in May’s municipal election. During Wednesday’s commission meeting, member Ward Hauenstein asked City Attorney John Worcester for his legal opinions on the matter, but noted that he also has sought independent counsel. Hauenstein said he likely will ask the Aspen City Council to pay for the outside legal fees at an upcoming meeting.

In his capacity as city attorney, Worcester also provides legal advice to city boards and commissions, such as the Election Commission. But he also is representing the city in its battle against political activist Marilyn Marks’ lawsuit, which stems from the city clerk’s denial of her request to examine ballot images from the 2009 mayor’s race.

Editorials: Colorado county clerks crying wolf | Vincent Carroll/The Denver Post

Get ready for a battle royal over the integrity of elections in Colorado — and just in time for this state’s apparently pivotal role in the 2012 presidential race. If the clash shapes up as expected, lawmakers will have to choose sides between a would-be election priesthood exempt from public oversight — I’m referring to the county clerks — and advocates for a fully open and accountable government.

The clerks, you see, are in a panic about a recent appeals court ruling that says voted ballots are public documents under the Colorado Open Records Act, so long as “the identity of the voter cannot be discerned from the face of that ballot.”

The court’s definition should include the vast majority of ballots, assuming election officials and voters follow the law. But if you listen to the clerks, you’d think the opposite. Embracing Chicken Little as their role model, the clerks’ association issued a statement after the ruling, claiming it “has removed the curtain from our voting booths. Most Coloradans believe their votes should be a secret from their friends, coworkers and even spouses, but today’s ruling means Coloradans’ personal choices can be seen by anyone who asks.” The clerks’ statement is either contemptible fear-mongering or an admission that they supervise a system that comprehensively thumbs its nose at the state constitution’s mandate of anonymous ballots.

Colorado: Pitkin County to release a handful of ballots | Aspen Daily News

The Pitkin County Clerk and Recorder’s Office will grant Marilyn Marks’ request to inspect a handful of ballots cast in the 2010 election, County Clerk Janice Vos Caudill announced Monday.

Specifically, Marks — an Aspen resident and a self-described election transparency activist — and anyone else who is interested, will be able to eyeball five to 10 of the ballots from precinct 6, which mostly encompasses Snowmass Village. The review will be conducted Thursday under the watchful eye of Vos Caudill and county elections manager Dwight Shellman, as well as video cameras.

Marks and other observers will not be able to touch the ballots, which will be returned to the ballot box after the review. “What I’m trying to do is break the ice,” Marks said, acknowledging that Thursday’s limited review will be mostly symbolic in her quest for election transparency. “We just need to get used to the idea that this is no big deal … [and] demonstrate to the press and the council that ballots are anonymous.”

Colorado: Marks seeks the release of Pitkin County ballots | Aspen Daily News

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.

Colorado: Aspen to appeal ruling over ballot images | AspenTimes.com

In a somewhat expected move, the city of Aspen has decided to appeal last week’s state appellate court judgment that said local political activist Marilyn Marks has a right to inspect ballot images from the 2009 mayoral election. “The Aspen City Council has directed staff to appeal the Marks v. Koch case to the Colorado Supreme Court,” says a statement released Tuesday from the City Attorney’s Office. “At issue in the lawsuit, which was originally filed in 2009, is the right of citizens to expect that their cast ballots will remain secret.”

The city maintains that it is residents’ constitutional right to vote their consciences knowing that their ballots will remain “forever secret,” the prepared statement says. The lawsuit against City Clerk Kathryn Koch, who declined Marks’ request to view ballot images from the spring election that Marks lost, states that the Colorado Open Records Act and other state laws allow public ballot inspection as long as it is not possible to discern a voter’s identity. “This case is not about election transparency,” the city’s statement reads. “The 2009 municipal election was one of the most transparent elections in city and state history. This case involves the sanctity of the secret ballot.”

Colorado: Could new court ruling impact elections lawsuit against Mesa County? | NBCnews11

A woman suing Mesa County elections officials over the release of voting records scored a major victory Thursday. In a separate suit filed against the City of Aspen a judge ruled in her favor, saying digital copies of election ballots are open to public inspection. Now she’s hopeful that ruling will come into play as the case here moves forward.

Aspen resident Marilyn Marks made a request in August to see electronic scans of ballots cast here in Mesa County during the 2010 elections. Mesa County Clerk and Recorder Sheila Reiner denied part of that request, saying the way the ballots are organized in the digital files could reveal how individual citizens voted — violating their right to ballot secrecy. In early September, Marks filed suit against the Clerk’s office for the public release of the records.

Thursday was a good day for Marks, who describes herself as an elections activist. After a two year legal battle with the City of Aspen, she’ll be granted access to digital copies of ballots there, which she says is necessary to verify fair and accurate elections.

Colorado: Court of Appeals rules voted ballots should be public records | The Denver Post

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.

Colorado: Appeals court rules in Marilyn Marks’ favor in ballot transparency case | Aspen Daily News Online

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.

Read the Court Opinion (PDF)

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.

Editorials: Colorado’s besieged clerks | Vincent Carroll/The Denver Post

Wherever you go in Colorado, the most public-be-damned civil servant is likely to be the county clerk.

I’ve reached this conclusion with regret, since my experience with clerks over many years, without fail, has been pleasant and fruitful. But the clerks this year have dug themselves into a stance that endangers the integrity of elections. Moreover, to protect their monopoly on access to voted ballots — a monopoly to which they clearly have no right under the Colorado Open Records Act — they are trying to scare the public with lurid tales of how voter anonymity is at risk.

Back in March, you may recall, the clerks association denounced a bid by Secretary of State Scott Gessler to conduct an official, public recount of a contested election in Saguache County, claiming his “proposal sets a dangerous precedent.” The clerks’ real fear, however, was not that Gessler might look over their shoulder but that he would let the public do so, too. And he did — once a district judge ruled in August that “voted ballots are election records” under the open records law, permitting the recount to proceed.

Colorado: Ethics Watch Files Amicus Brief In Saguache HAVA Case | Colorado Ethics Watch

Today, the Denver District Court accepted an amicus curiae (friend of the court) brief filed by Ethics Watch in a Help America Vote Act (HAVA) case arising out of the 2010 election in Saguache County. The suit was filed by Marilyn Marks against Secretary of State Scott Gessler after the Secretary of State’s office dismissed her HAVA complaint for lack of standing.

HAVA requires states that accept federal funding under that act to establish administrative procedures allowing “any person” to file a complaint. Marks alleges that the Secretary of State’s office dismissed her complaint without a hearing, relying on a state statute. Marks argues that the federal statute must control.

Colorado: Aspen woman sues Mesa County elections officals over voting records | nbc11 news

An issue of voter secrecy or government transparency in elections? That’s the question at the center of one woman’s lawsuit against Mesa County elections officials. Following the 2010 elections, leaders in Saguache County came under heavy scrutiny when it was discovered there were several problems with the counting of ballots there. Their county uses the same voting system used in both Mesa County and Jefferson County.

“As we have uncovered a number of problems with the ES&S product in Saguache County, I became curious about how it operated in Mesa and Jefferson,” said Marilyn Marks, an elections activist who lives in Aspen.

When it comes to ensuring fair and accurate elections, Mesa County Clerk and Recorder Sheila Reiner says her elections department is among the best. “Here in Mesa County we pride ourselves on being leaders in security, accuracy, and transparency,” said Reiner. But it’s the transparency piece where Marks says Mesa County is among the worst.

Colorado: Mesa, Jefferson County clerks seek court order to withhold Colorado Open Record Act-requested ballots | Valley Courier

In an attempt to obtain a court ruling differing from Saguache District Judge Martin Gonzales’ recent decision that ballots are public records, two Colorado county clerks have simultaneously requested court orders to withhold voted ballots from public inspection.

Mesa County Clerk Sheila Reiner and Jefferson County Clerk Pamela Anderson filed almost identical documents seeking the decisions yesterday in Grand Junction and Golden. Both clerks received Colorado Open Record Act (CORA) requests from Aspen election integrity advocate Marilyn Marks last month and both refused to supply the documents Marks requested.

Marks sought three specific types of voting records: the record of how each anonymous electronic ballot was voted, primarily, but also computer audits and system logs. Both clerks claim to have destroyed the computer audits and system logs, despite the fact that federal and state law requires a two-year retention period.

Editorials: The sky didn’t fall after all | The Denver Post

There, that wasn’t so terrible, was it? Democracy didn’t sputter out when citizen volunteers were allowed to inspect — and yes, handle — ballots cast by residents of Saguache County in a recent recount of last fall’s contested results.

Unwashed barbarians did not desecrate the sanctuary of our election priesthood, as Colorado’s county clerks all but predicted earlier this year when they were denouncing the proposal. “We believe ballots are sacred,” the president of the Colorado County Clerks Association declared in commentary published in The Post, adding that “the integrity of our elections is worth fighting for.”

Yes, the integrity of our elections is worth fighting for. And that’s why the precedent in Saguache County is so important.

Colorado: Judge rules Secretary of State has access to election ballots; recall of Saguache County Clerk initiated | Crestone Eagle

According to District Judge Martin Gonzales, Saguache County Clerk Melinda Myers must allow Secretary of State Scott Gessler to have access to Saguache County’s voted ballots from the November 2010 election. 31. He plans to recount them the end of August. As promised prior to the hearing,

Myers has agreed to follow the Judge’s ruling and turn over ballots. But even as the Clerk and Commissioners sought clarity on the ballot issue, a group of citizens calling themselves the Committee to Recall Melinda Myers as County Clerk and Recorder continue to gather signatures on a recall petition. They hope to put the recall on the ballot in a special election, probably after the November 2011 regular election.

Colorado: Myers says SOS would ok ES&S M650 use for recall | Center Post Dispatch

According to an article on the BOCC recall petition hearing in the Pueblo Chieftain last week, Saguache County Clerk Melinda Myers says the Secretary of State’s (SOS) Office would permit the use of the M650 to tabulate recall election results.

The recall committee for Myers represented by former commissioner’s candidate Steve Carlson requested Aug. 2 that Saguache Commissioners appoint an official other than Myers to conduct the recall election and asked that the votes in the election be counted by hand.

Commissioner Sam Pace announced that Saguache Treasurer Connie Trujillo had been appointed to oversee the recall election and would be assisted by a retired Colorado county clerk or other individual familiar with election processes. The decision to hand count the ballots would need to be made by Trujillo and her assistant, Pace said.

Colorado: Colorado Secretary of State sued over election-complaints standard | The Denver Post

An Aspen election-integrity activist is suing Secretary of State Scott Gessler and his office, saying Colorado has set an overly restrictive standard for who may allege violations of federal election law.

“When an election irregularity occurs, it’s important that anyone be able to complain and have their complaint fully investigated,” Marilyn Marks said Wednesday. “If a very, very high hurdle is up, it will discourage complaints. It sends a message to the county clerks that ‘You don’t have to worry; we’re not going to let anyone complain.’ “

Marks filed a complaint in April alleging that violations of the federal Help America Vote Act occurred during the 2010 general election in Saguache County — an election so plagued with problems, it prompted a statewide grand jury investigation.

Colorado: ES&S representatives fail to show for ordered depositions | Center Post Dispatch

Election Systems and Software officials failed to appear for depositions earlier this month after Saguache District Judge Martin Gonzales ruled that the firm could be deposed for a Colorado Open Records Act (CORA) suit filed in February.

Denver attorney Robert McGuire, on behalf of his client, Aspen election integrity activist Marilyn Marks, filed the suit to force Saguache County Clerk Melinda Myers to turn over voting records and related documents Marks requested beginning in November 2010. McGuire waited for officials from the Nebraska firm for nearly an hour, he said, before deciding they would not appear.

Marks later filed a motion with the court to hold them in contempt unless they could show sufficient cause for refusing to honor the deposition subpoenas. ES&S made no motion to file a protective order (if their appearance would violate trade secrets and/or force the production of proprietary information) nor did their attorneys move to quash the subpoena, court records show.

Colorado: Secretary of State backs Marks in Colorado election suit | Aspen Daily News

Colorado’s chief election official says he believes that an unsuccessful Aspen mayoral candidate deserves to win a lawsuit against the city demanding access to ballot images from the 2009 municipal election.

The suit filed by City Hall critic and ‘09 candidate for mayor Marilyn Marks was dismissed last year by local District Judge James Boyd. Marks has appealed the dismissal.

Judge Boyd agreed with city attorneys that allowing the public to inspect photographic images made of the ballots cast in the May 5, 2009 election would violate state law protecting secret voting. City Clerk Kathryn Koch denied an open records request from Marks to view the ballot images, prompting Marks to sue for access.