VOTING RIGHTS CONFLICT OF NATIONAL IMPORTANCE
During post-election jockeying between mayor-elect Ireland and former candidate Marilyn Marks, a voting rights conflict of national importance was exposed. When the City chose to deny a crucial open records request by Marks, she filed a lawsuit to compel compliance with Colorado Open Records Laws.
OVERVIEW: No rational person can favor unaccountable elections. Elections that are unaccountable to the people they purport to serve fail to recognize that the people are the sole legitimate and ultimate source of power in any democratic system of government. Concealment of Aspen's ballot images violates a high-level right: The right of the public to examine and authenticate all essential components of public elections.
Can a local government legally prohibit a citizen from examining anonymous digital images of the ballots? The City of Aspen seems to think so.
ARGUMENT FOR PUBLIC CONTROLS: THE GOVERNMENT SHOULD BE POWERLESS TO WITHOLD EVIDENCE OF ITS OWN LEGITIMACY FROM THE PUBLIC
Voting is the right that protects all other rights. The founders of our system of government, the framers of the United States Constitution, wrote and spoke about government being powerless to tinker with the mechanisms of its own legitimacy, because such tinkering would conclusively demonstrate that the government was trying to break free from the only thing it was created to serve: the people of the United States of America.
The Aspen city government, in effect, is trying to say that the government must engage in non-transparency, forcing the public to simply take the word of the government rather than allowing the public to authenticate elections.
(From Marks' legal complaint) On election night, the tabulation of ballots under the new IRV rules was conducted by TrueBallot, Inc. ("TBI"), a Maryland corporation engaged in the business of election and ballot administration, under a Balloting Agreement between TBI and the City of Aspen...The first step of the TBI tabulation process was to scan the original paper ballots cast in the election and save each resulting digital photographic image as a single computer file in tagged image file format ("TIFF")
...On June 4, 2009, counsel for the Defendant [City of Aspen] denied the Plaintiff's [Marilyn Marks] CORA [Colorado Open Records Request] request to inspect digital photographs created from ballots...
Aspen initially tried to dispense with Marks's public records request by claiming that Aspen does not have to comply with Open Records laws because of its Home Rule Charter. Home Rule, however, does not trump constitutional rights. Then someone in Aspen government circles decided to use open records laws themselves to get a bunch of Marks's e-mails; the city has not recently repeated the absurd contention that Aspen is exempt from open records laws.
ASPEN'S ARGUMENT: ANONYMOUS BALLOTS "MAY NOT BE ANONYMOUS"
When Marks asked to review the anonymous ballot images, which are not the ballots, but rather, scanned images of the ballots created on a CD by a vendor, Aspen denied her request to examine anonymous ballot images on the grounds that they may not be anonymous.
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