City of Aspen petitions high court over ballot ruling

By Troy Hooper
Real AspenNovember 12, 2011

The city of Aspen is petitioning the Colorado Supreme Court to review a Court of Appeals decision that ruled ballots must be made public as long as they don't identify voters.

The case, which Aspen resident Marilyn Marks filed in 2009, originated after Marks lost to Mick Ireland in the mayor's race. The city denied her requests to view ballots, or ballot images, to verify the election and 9th Judicial District Court Judge James Boyd upheld the city's position. The Court of Appeals, however, recently shot down Boyd's ruling. Ballots, the Court of Appeals ruled, are already supposed to be submitted anonymously and so long as they don't have any identifying marks, the public should be able to inspect them to verify elections.

Marilyn Marks

Even so, Aspen officials maintain the Court of Appeals' ruling could damage the democratic process and jeopardize citizens' right to vote knowing that their ballots will remain secret.

"The case is not about election transparency. The 2009 municipal election was one of the most transparent elections in City and state history," the city of Aspen stated in a press release Friday. "The case involves the sanctity of the secret ballot. The City believes that the Court of Appeals was in error when it held that the Colorado Constitution and state law do not protect the secrecy of ballots. For more than a century, laws in all 50 states require elections to be held by secret ballot. Because the decision of the Court of Appeals would have important ramifications for all future elections if allowed to stand, the City believes that it is important to have the Supreme Court review the lower court’s decision."

Marks said she is disappointed but undeterred by the city's decision to press the issue.

"The City’s petition to the Supreme Court is riddled with flawed logic and based on misconception," Marks wrote in an email to Real Aspen. "The City’s 19th-century reasoning stipulates that Colorado election law must strike a compromise between election transparency and voter privacy. The City contends that election officials may know how voters vote as long as the officials keep it 'secret'— election policy that was in fact the case until mid last century. In 1947, in an effort to curtail the inevitable abuses of ballots that officials could link to individual voters, the people of Colorado amended the state constitution to mandate the use of anonymous ballots, which allowed for full verification of elections through review of cast ballots without any risk of linking a ballot to an individual and thereby compromising voter privacy. For 65 years, both voter privacy and anonymous ballots have been the clear law in Colorado, making no dangerous compromises necessary.

"... If Florida’s Bush/Gore ballots can be verified by the press, and Minnesota’s Franken/Coleman Senate race ballots can be posted on the Internet," she continued, "surely Aspen can move into the 21st century and acknowledge that voter privacy and anonymity implemented together promote fully transparent elections where anyone may re-tabulate the election for themselves, as Aspen’s Council promised before the 2009 election. We no longer live in a time where the government can collect and keep secrets about how we vote, despite the desires of some officials. ... The City argues that there is “substantial injury to the public interest” if the ballots are released. How can verifying that votes are accurately tallied cause substantial injury to the electorate? Perhaps the City means that there would be substantial embarrassment to the City. Given the dozens of documented irregularities in the 2009 election, it can be easily demonstrated that the public is best served when election irregularities are exposed and rectified, not hidden. Substantial injury to the public interest occurs when the ballots and election errors are concealed from public scrutiny, thereby eroding the public trust in the democratic process."

Marks added that she is "especially appalled" that the Aspen City Council's unanimous decision to appeal to the state's high court was allegedly done without required public considerations. Marks has 10 days to file an opposition brief to the city's petition and the city will have an additional five days to file a reply brief, Aspen officials said.

"The Supreme Court has complete discretion in deciding whether it will grant the request for appeal. It may not be until 2012 that the City gets an answer. In the meantime, the Appellate Court’s decision will be stayed and all cast ballots from the May 2009 election will remain locked up," the city of Aspen stated in its press release.

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