(Aspen,CO) – Pitkin County Clerk and Recorder Janice K. Vos Caudill announced today that she will grant Marilyn Marks’ request under the Colorado Open Records Act (“CORA”) to inspect five to ten anonymous voted ballots cast in the 2010 General Election.
By mutual agreement, the inspection will occur on Thursday, October 20th, pursuant to the protocols set forth below. The Clerk and Recorder made this decision for the following reasons:
On September 29, 2011, a panel of the Colorado Court of Appeals issued its opinion in Marks v. Koch, holding that voted ballots are public records subject to inspection under CORA, unless they are marked in such a way as to identify the voters who cast the ballots.
Late in the day on Friday, October 14th, the Colorado Secretary of State’s office issued Election Alert 2011-04, advising county clerks that the Department of State interprets the Court of Appeals’ decision to require county clerks to make voted ballots available for inspection in accordance with CORA and the specific findings of the Marks v. Koch panel. In addition, and before making voted ballots available for public inspection, Election Alert 2011-04 requires county clerks to perform or comply with the following tasks and limitations:
Review every ballot to determine if it contains a write-in vote or other marks that could identify the voter who cast the ballot. If the ballot contains identifying marks, it must be withheld from inspection or a copy without the identifying marks must be provided;
Because of specific exceptions in the state election code, the following types of ballots and records must not be released for inspection: ballots not counted because signatures did not match; provisional ballots, whether or not counted; ballots cast by military or overseas electors that were returned by fax or email and subsequently duplicated; and ballots in precincts or splits with fewer than ten ballots cast. All ballots subject to inspection must remain in the custody of the county clerk and recorder and shall be sealed and secured in accordance with Election Rule 43.
After consulting with Pitkin County Attorney John Ely, the Clerk and Recorder made the determination to grant Ms. Marks’ CORA request to inspect five to ten voted ballots from the 2010 General Election. The Clerk and Election Manager will review polling place ballots for Precinct 6 (Town of Snowmass Village) and select individual ballots that do not contain write-in votes or other identifying marks. The County Clerk and Election Manager will handle the ballots for Ms. Mark’s view. All processes including the logging, unsealing and re-sealing of transfer cases containing voted ballots, will be video recorded, and the recordings will be preserved with the other records for the 2010 General Election.
Unlike municipalities, counties are administrative subdivisions of the state, and county clerks are required to implement and enforce a variety of state laws, including judicial opinions, Colorado Revised Statute Title I, Election Rules, orders and directives promulgated by the Secretary of State.
“State election laws and rules are very complicated,” Vos Caudill said. “County clerks understand that breaking the seals that secure voted ballots and releasing voted ballots for public inspection may have unintended consequences that could cause harm. The proliferation of election-related data, advances in database technology, and the interpretation of CORA to encompass voted ballots may unwittingly combine to produce public harm and injury by enabling the identification of a voted ballot with a particular voter. It is imperative these risks be addressed in a thoughtful and systematic review of all applicable laws and regulations by the General Assembly, the Election Division of the Department of State, county clerks and election personnel, and community members. The people of Colorado and clerks deserve clarity versus litigation that, at best, provides partial answers on an ad hoc basis,” Vos Caudill said.
“My foremost concern as Clerk and Recorder for Pitkin County is to continue our proud legacy of honest, fair and verifiable elections in a manner that is both transparent and ensures the anonymity of ballots cast by Pitkin County electors. However, achieving these disparate but extremely important objectives is becoming increasingly difficult, and may be completely impractical due to the unique facts and circumstances of any given future election. Until there is clarity in law and rule, I will work to assure that each Pitkin County individual has the ability to exercise their right to vote with confidence in the anonymity of their ballots and the secrecy of their individual votes,” Vos Caudill said.