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OpEdNews Op Eds    H2'ed 12/8/09

Aspen's Slippery Slopes: Constitutional rights violation, denial of crucial public records

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Aspen officials also contend that a scanned copy of a ballot IS a ballot. Then they admit that it isn't.

The City of Aspen filed a motion to dismiss the case, using an approach that reminds me of the unskilled early courtroom moves in the film "My Cousin Vinny." As you may recall, when the judge asked Vinny to enter a plea, he kept trying to argue the case, to which the judge retorted:

"Apparently you want me to skip the arraignment and move directly to the trial, and then skip the trial and move directly to a verdict..."

Marks' Attorney Robert McGuire responds to Aspen's motion to dismiss:


(From Marks' response to Motion to Dismiss) - "The City of Aspen tries to get the court to dismiss the case by arguing the merits of the case, rather than by finding a valid cause for dismissal... the affirmative defenses of constitutional infirmity and contrary state statute are based on erroneous constructions of the Colorado Constitution and Colorado statutes and therefore do not entitle the Defendant to judgment as a matter of law; and because the defense of "substantial injury to the public interest" under CORA requires the Court to resolve a disputed issue of material fact, which renders judgment on the pleadings inappropriate".

You might want to grab a stiff drink and settle into your favorite armchair for what follows. Here is a rundown of the case so farm, from the Marks v. City of Aspen litigation files:

The city contends that examining the anonymous ballot images may threaten ballot anonymity because the images may not be anonymous.


(From Marks' response to Motion to Dismiss) "...Furthermore, the Defendant's broader concern that the Plaintiff's inspection of the requested records might threaten ballot secrecy generally can only be understood to mean that the Defendant believes the ballots used by the City of Aspen contain some kind of information that makes them personally identifiable.

"...If it is indeed the Defendant's position that the ballots are somehow inherently personally identifiable (through inspection of the TIFF files), then the ballots themselves must violate the anonymity in balloted voting that is required by Article VII, Section 8, of the Colorado Constitution.

"...The Colorado Constitution's guarantee of secrecy in voting means that a voter's ballot should not be personally identifiable to anyone, including the government. To the extent that the Defendant asserts that the constitutional provision for secrecy in voting will be violated by allowing the Plaintiff to inspect the requested records, that secrecy must already be breached by virtue of the government's own possession of those same records. "

The City of Aspen presented a series of points that misquote Colorado law, tucking in Aspen's own extra words "or images of ballots" whenever they found it handy to conflate the two, like this:

From court papers filed by the City of Aspen:


"As noted below, 31-10-616, C.R.S., specifically prohibits the city clerk from making available for public inspection the ballots, OR IMAGES OF THE BALLOTS."

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Bev Harris is executive director of Black Box Voting, Inc. an advocacy group committed to restoring citizen oversight to elections.
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