Colorado court rules that digital ballots are open records

Jamie Schuman | Freedom of Information | Feature | September 30, 2011

In a decision that will make it easier for journalists to cover controversial elections in Colorado, the state’s appellate court ruled Thursday that digital versions of voters’ ballots are open records.

In Marks v. Koch, the Colorado Court of Appeals held that, even though the Colorado Constitution protects “secrecy in voting,” the state must let people review digital copies of ballots, so long as voters’ identities are not revealed. The state constitution only “protects from public disclosure the identity of an individual voter and any content of the voter’s ballot that could identify the voter,” the court held.

After losing a 2009 mayoral bid in Aspen, Colo., Marilyn Marks sought digital copies of ballots from that election under the Colorado Open Records Act. Following the election, the Aspen clerks’ office had revealed that the tabulations were incorrect and the winning candidate had more votes than originally announced.

The district court found for the city of Aspen in March, holding that Marks’ request conflicted with the constitutional “secrecy in voting” clause. The court also found that the digital files are ballots, which, under Colorado election law provisions, cannot be released.

The appellate court rejected both arguments. While the “secrecy in voting” clause protects from public disclosure the identity of voters, it does not protect “the content of a ballot,” the court held. The ruling requires the Aspen clerk’s offices to release to Marks "digital copies of corresponding paper ballots" that do not include a write-in candidate or markings that could identify an individual voter.

The appellate court also held that the electronic copies are different from paper ballots, and, therefore, are not subject to the state's ballot storage and destruction provision that the district court cited in denying Marks' request.

Marks’ attorney, Robert A. McGuire, said political reporters in Colorado will find the decision especially helpful, as it will allow them to conduct their own ballot counts of close elections. It’s a similar right to the one that Florida newspapers won following the 2000 presidential election, in which George W. Bush defeated Al Gore.

“This is going to be pretty useful, particularly in controversial elections,” McGuire said.

The Aspen clerk's office may appeal the decision on the grounds that the court did not address its argument that disclosing the ballots could substantially injure the public interest, which is a reason for denying a Colorado Open Records Act request, the Aspen Daily News reported. If people can find out who voted for which candidate, their confidence in the electoral system could be jeopardized, according to the newspaper.

McGuire said that argument is meritless because the appellate court's decision does not require Colorado to reveal any ballots that may be personally identifiable.