Face the State Staff Report
Citizens seeking to conduct an independent review of Aspen's last municipal election have run into a road block at city hall, where officials are refusing to release key documents into the public domain.
Democrat election buff Harvie Branscomb has teamed up with former Republican Aspen mayoral candidate Marilyn Marks to analyze the voting methods and software in the city's last election, including the use of instant runoff voting. To audit the vote, Branscomb's team needs copies of April's ballots plus data generated by vote-counting machines, which the City Council asserts aren't public records under state law.
Branscomb's focus is on innovative new ballot counting software by TrueBallot. Because the home rule municipality opted to use Instant Runoff Voting, where voters rank their choices for mayor and city council, vote tallying required advanced software programs and technology, which Branscomb believes are sophisticated and reliable enough to use statewide.
"I am planning to produce a review of all of the elements of the election," said Branscomb, who has applied for the state's open elections director position. "Aspen makes a very interesting test case of best practices and vision."
Branscomb wants to compare paper ballots prepared by voters to digital copies used by the TrueBallot software to then tabulate the votes. His request under the Colorado Open Records Act was denied by the city attorney, who maintains that Aspen's status as a home rule municipality allows it to carve out exceptions to the state public records law.
"I don't believe the images of the ballots are public records under the state's open records act," said Aspen city attorney John Worcester. "Moreover, I believe as a home rule municipality, City Council has the right to adopt ordinances for the proper running of municipal elections."
Marks, the former mayoral candidate, is not directly working on the analysis but is instead focusing on raising funds for the effort. She is a vocal critic of city hall and her former opponent and current Mayor, Mick Ireland. She believes the council should comply with the spirit of CORA, even if home rule does allow them an exception from CORA.
"I don't believe that our city council would want to fly in the face of the spirit of sunshine laws," Marks told Face the State. "Once they understand that they are not at risk of disclosing anything private and that state law makes ballot images subject to open records, I believe our council will order the clerk to release these and we won't have to go through a legal contest."
Worcester, who has advised City Council not to release the ballot images, says concerns over privacy and potential fraud are reason enough to keep the images private.
"There are ways that those anonymous ballots could become identifiable," said Worcester. "Simply if people put a mark in the corner or something they would recognize their ballot. Later on you could identify whose ballot is whose."
Marks says the city's argument is undermined by the fact the ballots have already been made public in some form at least once before. Because the TrueBallot software is new technology, many voters expressed concern that their votes would be inaccurately counted. To remedy these concerns, the city allowed voters to view ballot images on a large television screen as they were being scanned on election night.
"Each ballot was flashed on a projector as it was scanned," said Marks, who witnessed the vote count. "Already these images have been shown to the public...Part of our argument is that we've already made these public by letting people see them."
Worcester admits this "may have been a mistake," and points out the images were flashed across the screen at a rate of several ballots per minute.
Denver County GOP Chairman Ryan Call, an attorney who represented Marks during her run for mayor, has "expressed interest" in working with Branscomb, although nothing has been formally arranged. Call says the council is unwise in its current position.
"I don't believe [the city council] will be successful if they try to assert [privacy] as a legal argument," he said. "If they try to play that card, then literally thousands of local home rule municipalities would not be subject to CORA and I don't think that's a good legal position to take."
Ultimately, the decision to release the ballot images will be made by the city council. Branscomb's first CORA request was denied, and he is filing a second that excludes ballots with write-in candidates in order to protect the privacy of those voters who may be possibly identified by their handwriting.