Public ballot examinations are not uncommon throughout America. Some states, like the 2008 presidential race in Humboldt County, California and the Minnesota senate race, have already published digital ballot images on the Internet. In some states, like Ohio, citizens may have to wait for a retention period to expire before they examine ballots, as Richard Hayes Phillips and Paddy Shaffer did when they examined Ohio's 2004 presidential ballots in 2006. Sometimes citizens can examine the ballots as soon as the contest period has expired. And as you may recall, news organizations used sunshine laws, also know as open records laws, to examine every ballot cast in the 2000 presidential election in the state of Florida.
ASPEN'S ARGUMENT: "IN THE INTEREST OF PUBLIC INTEREST, WE MUST CONCEAL CRUCIAL ELEMENTS OF PUBLIC ELECTIONS FROM THE PUBLIC"
The City of Aspen then turns the concept of "the public interest" on its head, claiming that crucial evidence from public elections must be concealed from the public, citing harm to "the public interest" if the public is allowed to authenticate its own election records:
quote:"CORA requires the custodian of a public record to refuse to disclose a public record if in her opinion 'disclosure of said record would do substantial injury to the public interest.'"
The Aspen court documents explain that allowing inspection of ballot images would be against the public interest because there must be "finality" in elections. But this confuses two principles. Finality in elections is achieved by setting deadlines for canvassing, certification and contesting elections in court. In fact, nothing will now change the outcome of the May 2009 Aspen mayoral election. As we saw when the media examined all Florida ballots from the 2000 election, finally publishing their findings in late 2001, a sunshine law examination has nothing to do with altering election outcomes. Freedom of information rights are not based on changing a result, they are based on the public right to know.
ASPEN'S ARGUMENT: "THE PUBLIC SHOULDN'T SEE CONTENT OF THE BALLOTS."
The City of Aspen then really dives into the rabbit hole, claiming that the public must not be allowed to examine the CONTENTS of cast ballots (ie., the votes on the ballots) because it will violate the secret ballot because someone might have made an illegal mark on a ballot. It should be noted that Marks's lawsuit requests examination of the "anonymous" scanned ballot images. She even invites public officials to withhold ballot images with hand written write-ins or any other identifying marks that Aspen officials might think would compromise political privacy.
Article 8 of the Colorado Constitution prohibits voters from making identifying marks on their ballots. By taking the position that voters (or, perhaps, government or election officials) might have broken the law by placing identifying marks on the ballots, the Aspen government is taking the position that only the government can see these marks, and that the government, if it finds them, can cover up evidence of a crime by refusing to show them to the public. If the government is saying "We're going to withhold these on the grounds that it may compromise secret ballots," what they are asserting as a defense is commission of a crime.
And it's also absurd. Since there is no exemption for the government to see items but not the public, following a line of reasoning that the content of ballots cannot be examined by the public would mean that elections could not be counted by anyone.
quote:(From Marks' response to Motion to Dismiss) - The Defendant asserts that Article VII, Section 8, of the Colorado Constitution prohibits the public disclosure of "ballots and copies of ballots" cast in an election. (Def.'s Mem. Supp. Mot. Dismiss at 7.) This contention is erroneous both because the public's inspection of the TIFF files cannot violate secrecy in voting where the underlying ballots themselves comply with the Colorado Constitution and because TIFF files created from underlying ballots that are illegally marked to be personally identifiable should not be constitutionally shielded from public disclosure purely as a result of their illegality.
...The Defendant argues that the Colorado Constitution requires the actual content of the ballot itself to be kept secret... she mistakenly characterizes as supporting her argument that secrecy in voting goes to the "contents or information contained on ballots."
... Furthermore, the Defendant's interpretation that the contents of a ballot are themselves required to be secret ultimately cannot be correct, since requiring the contents of ballots to be secret would produce the absurdity that votes in an election could not constitutionally be counted. After all, the government is nowhere exempted from the requirements of Article VII, Section 8; so if secrecy in voting shields a ballot's content from the eyes of the public, then it must equally shield that ballot's content from the eyes of the government, including from a government tabulator who can only count votes by accessing the "content or information contained on the ballots."
Because the Defendant's interpretation produces an absurdity and because the plain language of Article VII, Section 8, supports the more reasonable conclusion that secrecy in voting protects the anonymity of ballots, rather than their contents, the Defendant's interpretation of the scope of the constitutional requirement of secrecy in voting must be rejected under Rodriguez, 112 P.3d at 696. The plain language of Article VII, Section 8, is properly interpreted only to require that ballots be anonymous, not that their contents should also be secret.
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