The Colorado Court of Appeals issued its opinion in Marks v. Koch on September 29, 2011.
Colorado Open Records Act—Ballot—Identity—Colo. Const. Art. VII, § 8—Colorado Municipal Election Code.
In this proceeding under the Colorado Open Records Act (CORA), plaintiff Marilyn Marks appealed the district court’s judgment dismissing her case for failure to state a claim on which relief can be granted pursuant to the motion filed by defendant Kathryn Koch, the City Clerk of Aspen. The judgment was reversed and the case was remanded for further proceedings.
The public records Marks sought to have released under CORA were 2,544 digital copies (TIFF files) of ballots cast in the May 2009 Aspen mayoral municipal election, in which Marks was a losing candidate. Marks contended that the right to inspect the TIFF files was not contrary to the secrecy in voting requirement of article VII, § 8 of the Colorado Constitution. The Court of Appeals agreed. The secrecy in voting requirement seeks to protect the identity of a voter and not the content of his or her ballot (assuming the voter’s identity could not be discerned from the content of the ballot); therefore, it does not bar the latter from release under CORA.
Marks also contended that, because the TIFF files are not ballots, releasing them would not be contrary to the Colorado Municipal Election Code’s ballot storage and destruction provision. The Court agreed. The district court was ordered on remand to release the TIFF files to Marks for inspection pursuant to CORA, with the exception of those TIFF files that contain either a write-in candidate or ballot markings that could identify an individual voter.