Colorado Supreme Court denies City of Aspen challenge to ballot inspection
By Summit Voice
SUMMIT COUNTY — 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.
In the case, the Colorado Supreme Court advised the City of Aspen last week that it reversed its grant of the Writ of Certiorari in the Koch v. Marks case. The court said in April it would hear the case and consider Aspen’s arguments concerning voter privacy, but the adoption of the new state law on ballots was likely a factor in the reversal, True said.
In a statement, Aspen said it was disappointed in the ruling, citing concerns about “the degradation of citizens’ right to a secret ballot. But True said that, with safeguards put in place by the Court of Appeals and state legislature that concern was lessened.
The City, nonetheless, felt that the Constitution prohibited any public examination of ballots. Thus, the City sought a determination from the Supreme Court. The Supreme Court has now concluded that there are no remaining constitutional issues to consider.
“The City obviously will comply with the decision of the Court of Appeals. The City of Aspen has never been concerned about the release of the 2009 or 2011 ballots or their images as it relates to the results of the election,” said Jim True, City Attorney. “In fact the City believes that an examination of the ballot images from 2009 will confirm the validity of the election and the efforts of the City to conduct a fair and honest instant runoff election. he only concern has been as it relates to the possibly that the Colorado Constitutional right to a secret ballot has been lessened.”
The Court of Appeals ruled in 2011 that the ballot images could be examined. However, the Court also ruled that the Clerk was required to exclude from examination images that contained any marking that could identify a voter. That determination of whether a marking could identify a voter is within the discretion of the clerk. This is essentially the same safeguard as adopted by the legislature at the end of the 2012 legislative session.