by Wesley Moore

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. The court summarized its holding as follows:

“Given our reasoning that (1) section 24-72-204 authorizes the release of public records under CORA absent a constitutional or statutory exception; (2) “secrecy in voting,” as used in article VII, section 8 of the Colorado Constitution, does not exempt the TIFF files from release under CORA, because that constitutional provision protects only the identity of an individual voter and any content of the voter’s ballot that could identify the voter; and (3) section 31-10-616 does not exempt the TIFF files from release under CORA because the TIFF files are not “ballots,” we conclude the TIFF files are eligible for public inspection under CORA, with the narrow exception of any TIFF file containing content that could identify an individual voter and thereby contravene the intent of article VII, section 8.”

The city of Aspen responded on November 11, 2011 with a press release announcing its appeal of the decision to the Colorado Supreme Court. The city argued that the case was about the “sanctity of the secret ballot,” and that the court of appeals had made a serious mistake when it did not protect the secrecy of ballots. The city’s petition to the state Supreme Court can be found here.

Mitzi Rapkin, the Communications Director for Aspen, also wrote an opinion letter in the Aspen Times justifying the city’s position. Rapkin argued that Marks is “trying to renegotiate the constitutional compromise between verifiability and secrecy that has prevailed in all 50 states for more than 100 years.” Despite the court of appeals holding which seems to respond to this issue, Rapkin further alleges that the public release of these ballots would invade voters’ privacy, due to the realities of voters occasionally leaving identifying marks on their ballots. Lastly, Rapkin appealed to a limited role of the courts, stating that determining whether ballots should be released in this manner is the role of the legislature.

Contrary to what Rapkin’s statements appear to imply, the city’s position is not uniform throughout the country. As pointed out in the Denver Post earlier this year, recent well-publicized recounts in Florida and Minnesota have involved some release of anonymous ballots. A lengthy, adamant post on the Daily Kos on this issue points out that Aspen is, in fact, in the minority.

Marks has since derided the city’s arguments as “illogical and dishonest.” She argued that there is a constitutional right to anonymous ballots, and likened the city’s attempt to maintain secret ballots as a “Big Brother” tactic. In agreement, Mary Eberle from The Daily Camera harshly criticized Aspen’s position as an attack on transparent elections and stating that, if the city is successful, Aspen residents would simply have to accept whatever results the clerks announce.

According to Aspen’s press release, Marks has ten days from the city’s petition for certiorari to file a brief in opposition. The state supreme court will then have to decide whether to hear the case. If it does so, a ruling would not be expected until 2012.

Wesley Moore is a third-year law student at William and Mary.


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