Colorado: Election Commission punts request to view ballots |

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: Voters’ secret ballots may not be so secret after ruling |

The state’s county clerks plan to ask the Colorado Legislature when it reconvenes in January to make ballots exempt from the Colorado Open Records Act. The clerks say a Colorado Court of Appeals ruling in August that ballots are public records has turned election law on its head and could allow someone to find out how people voted, no matter how careful clerks are in guarding voter secrecy. But fixing the problem could be more problematic than most people think, Mesa County Clerk Sheila Reiner said.

Reiner and Jefferson County Clerk Pam Anderson, who are facing identical lawsuits demanding to make their ballots public, say doing so would identify individual voters and how they voted. As a result, they think ballots should be made exempt from open-records laws. … Some people disagree, saying a balance can be struck that maintains election transparency without violating secrecy laws.

Colorado: Aspen election commissioner wants outside opinion |

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 |

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.

Editorials: Court made the right call on Saguache ballot battle | The Denver Post

A recent court ruling that paves the way for a public examination of the ballots in a controversial Saguache County election is the right legal call and appropriate public policy.

At the heart of the matter is a messy election in which the Saguache county clerk, in charge of tallying votes in the November contest, was losing her own race on election night but then prevailed the next day after she retabulated the votes. The outcome of another race changed as well.

The dramatic turn of events drew attention, as you might imagine, and accusations of “stolen” elections. Inquiries ultimately found that procedural problems did not affect the outcome of the election. Nevertheless, acrimony remained. This was the backdrop for a proposal earlier this year by Secretary of State Scott Gessler, a Republican, who planned to hold a public review of the ballots in an effort to rebuild confidence in the system.

Editorials: Our View: Voter fraud: Lay it out in the open | Silver City Sun-News

When the state’s top election official makes a public allegation of criminal behavior during prior elections, it is something that should be taken seriously and looked at closely. Secretary of State Dianna Duran made just such an allegation in March during a legislative committee hearing. Duran told lawmakers she had uncovered evidence that 37 people who are not U.S. citizens had voted in New Mexico elections.

But, when the ACLU filed an open records request the next day to examine the registration records of the 37 voters highlighted by Duran during the public meeting of the Legislature, she refused to turn them over, hiding behind the weak and inappropriate excuse of “executive privilege.”

Executive privilege allows a president, governor or other member of the executive branch to confer with advisors in private, without divulging the nature of those discussions or the participants. For example, when Democrats wanted to know who had served on an energy task force several years ago, Vice President Dick Cheney claimed executive privilege in denying that request. It does not allow a member of the executive branch to conceal evidence of an alleged crime.

Colorado: Guest Commentary: Wild West elections in one Colorado county | The Denver Post

The 2012 elections are big news, but the media are not reporting Colorado’s potential role in a national election fiasco.

Those who understand election equipment and procedures warn that Colorado elections cannot withstand close scrutiny. We call for changes to prevent humiliation if the national press attempts to verify Colorado’s election returns.

If Colorado were an “emerging democracy,” the Carter Center would reject calls to monitor our elections because we fail to meet their minimum transparency standards. If a national contest is decided by Colorado’s vote, as Bush/Gore was by Florida, press everywhere will severely criticize the “Wild West” elections in some Colorado counties.

New Mexico: ACLU sues New Mexico Secretary of State over voter registration | Alamogordo Daily News

The ACLU of New Mexico on Wednesday sued Secretary of State Dianna Duran, claiming she violated the open records law by withholding public information about alleged wrongdoing by voters.

To read the full text of the complaint, click here.

Duran, a Republican, told state legislators in March that she had evidence of possible voter fraud by 37 people. She said they had cast ballots in New Mexico elections but may not have been U.S. citizens. A day later, the ACLU filed a public information request to inspect the records so it could check Duran’s allegations. In its lawsuit filed in state district court in Albuquerque, the ACLU said that Duran’s staff then illegally concealed documents. The ACLU contends that Duran inappropriately invoked “executive privilege” and redacted requested emails and records so heavily that they were useless.

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.