COURT OF APPEALS, STATE OF COLORADO Court Address:

▲COURT USE ONLY▲

101 West Colfax Avenue, Suite 800 Denver, Colorado 80202

Trial Court: District Court, Pitkin County, State of Colorado Hon. James B. Boyd Case No.: 09-CV-294 Plaintiff-Appellant: MARILYN MARKS, a resident of the City of Aspen, Colorado v. Defendant-Appellee: KATHRYN KOCH, City Clerk of the City of Aspen, Colorado Attorney for Plaintiff-Appellant: Case Number: 10CA1111 Robert A. McGuire ROBERT A. MCGUIRE, ATT’Y AT LAW, LLC 1624 Market Street, Suite 202 Denver, Colorado 80202 Phone Number: 303-734-7175 FAX Number: 303-734-7166 E-mail: ram@lawram.com Atty. Reg. #: 37134

OPENING BRIEF

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CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with all requirements of C.A.R. 28 and C.A.R. 32, including all formatting requirements set forth in these rules. Specifically, the undersigned certifies that: The brief complies with C.A.R. 28(g). It contains 9,481 words in sections that count toward word limits under C.A.R. 28(g). The brief complies with C.A.R. 28(k). It contains under a separate heading (1) a concise statement of the applicable standard of appellate review with citation to authority; and (2) a citation to the precise location in the record (R. , p. ), not to an entire document, where the issue was raised and ruled on.

By: S/ Robert A. McGuire Robert A. McGuire, Reg. No. 37134 Attorney for Plaintiff-Appellant Marilyn Marks

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TABLE OF CONTENTS

CERTIFICATE OF COMPLIANCE ........................................................................ ii 

TABLE OF CONTENTS ......................................................................................... iii 

TABLE OF AUTHORITIES .................................................................................... ix 

I.  ISSUES PRESENTED FOR REVIEW ........................................................... 1 

A.  Marilyn Marks (“Marks”) sought under the Colorado Open Records Act (“CORA”) to inspect digitally scanned copies of voted municipal election ballots. Her request was denied by the City Clerk of Aspen (the “Clerk”) on the grounds that “secrecy in voting” prohibits any inspection of the contents of voted ballots. Does secrecy in voting permit examination of the contents of voted ballots, given that no ballot may legally be marked in a way that reveals who cast it? ............................................. 1 

B.  Marks’s request was also denied on the grounds that a statute addressed to the physical maintenance of municipal ballots and election records after an election requires “ballots” (but not other election records) to remain in the ballot box until their destruction. ............................................................................................ 1 

1.  Are scanned copies of ballots properly described as “other official election records,” instead of “ballots,” and thus subject to a different storage requirement than the Clerk relied on? ..................................................................................... 1 

2.  Even if scanned copies of ballots are “ballots,” does the maintenance requirement for ballots still fail to create an exception to CORA’s clear intent for voted ballots to be open to inspection?...................................................................... 1 

II.  STATEMENT OF THE CASE ....................................................................... 2 

A.  Nature of the Case ................................................................................. 2 

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B.  Proceedings and Disposition Below ...................................................... 2 

C.  Statement of the Facts Relevant to the Issues Presented ...................... 4 

III.  SUMMARY OF ARGUMENT ....................................................................... 8 

IV.  ARGUMENT ................................................................................................... 8 

A.  Standard of Review. .............................................................................. 8 

B.  “Secrecy in voting” is not violated by the public inspection of anonymous voted ballots. ...................................................................... 9 

1.  Construction of the Colorado Constitution. .............................. 10 

2.  “Secrecy in voting” protects the secret of who cast which ballot, not the anonymous voter markings on ballots. .............. 11 

a.  “Secrecy in voting” protects the anonymity of voted ballots. ............................................................................. 11 

b.  The content of a voted ballot that has been separated from the voter is emphatically not secret. ...................... 12 

i.  The conduct of elections would be impossible if the contents of voted ballots were a constitutionally mandated secret. ......................... 12 

ii.  Colorado’s election laws pervasively assume that the contents of voted ballots are not secret. .................................................................... 13 

iii.  Famous cases of recounts in which ballots have been publicized show that the contents of voted ballots are widely understood not to be secret. ............................................................... 14 

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3.  The anonymity of Aspen’s voted ballots, which is protected by “secrecy in voting,” must be presumed as a matter of law. ............................................................................ 15 

a.  Allegations that Aspen’s voted ballots are anonymous must be credited as true. .............................. 16 

b.  Aspen’s voted ballots must be presumed to be anonymous as a matter of law. ....................................... 16 

i.  Courts presume that laws prohibiting the identifiable marking of a ballot are obeyed.......... 16 

ii.  A Colorado voter may legally waive the privilege of “secrecy in voting,” but not by rendering her ballot identifiable. .......................... 17 

iii.  Even if a voter has illegally marked her ballot to be identifiable, such markings should be deemed to waive the personal privilege of secrecy in voting, per Mahaffey. .......................... 17 

4.  The TIFFs are anonymous to the same extent as the underlying voted ballots. ........................................................... 18 

C.  The provision of the municipal election records maintenance statute that applies to “ballots” does not apply to the TIFFs. ............. 19 

1.  Applicable Rules of Statutory Construction. ............................ 21 

2.  The district court’s reliance on the Uniform Photographic Copies of Business and Public Records as Evidence Act instead of rules of statutory construction was misplaced. ........ 22 

3.  The TIFFS are not properly construed to be “ballots.” ............ 22 

a.  The “plain and ordinary meaning” of the term “ballot” does not include the TIFFs. ............................... 23 

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i.  Title 1’s definition of “ballot” is not ambiguous and does not describe the TIFFs. ....... 23 

ii.  The dictionary’s definition of “ballot” is not ambiguous and does not describe the TIFFs. ....... 24 

iii.  The Complaint’s allegations about the nature of the TIFFs, viewed in the light most favorable to Marks, cannot support construing the TIFFs to be ballots. ......................................... 25 

b.  Even if the statutory term “ballot” is sufficiently ambiguous to allow it to include electronic reproductions such as the TIFFs, other factors weigh against such a construction. ............................................ 25 

i.  Exceptions to CORA must be narrowly construed. ............................................................. 26 

ii.  A construction of “ballots” that includes reproductions of ballots within its meaning is likely to produce negative consequences. ............ 27 

4.  The provision of the municipal election records preservation that applies to “all other official election records” properly applies to the TIFFs. .................................... 29 

D.  Even if the TIFFs are “ballots,” the requirement for ballots to remain in the ballot box fails to create an exception to CORA’s clear intent for all anonymous election records to be open to inspection. ............................................................................................ 29 

1.  Applicable Rules of Statutory Construction. ............................ 30 

a.  Exceptions to CORA are narrowly construed and must be specifically provided by law if set out in contrary statutes. ............................................................. 30 

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b.  The Colorado Municipal Election Code of 1965 is construed with a view to obtaining substantial compliance with its provisions. ...................................... 31 

2.  CORA allows the public inspection of “election records” including voted ballots and TIFFs. ........................................... 32 

a.  Ballots and TIFFs are “public records” and “election records” as defined in CORA. ........................................ 32 

b.  CORA allows the inspection of election records that do not contain specific types of personal information. .................................................................... 33 

c.  Ballots do not contain the kinds of identifying information that would exempt them from public inspection. ....................................................................... 34 

3.  The ballot storage requirement does not create an exception to CORA. .................................................................. 35 

a.  The ballot storage requirement is not an exception to CORA that is “specifically provided by law.” ........... 36 

b.  The ballot storage requirement is not contrary to CORA because ballots may be inspected in substantial compliance with the storage provision. ........ 36 

i.  The extent of noncompliance with the storage requirement during a CORA inspection is minimal. ................................................................ 37 

ii.  The purpose of the storage requirement is substantially achieved despite any incidental noncompliance...................................................... 37 

c.  Strict adherence to the ballot storage requirement is inappropriate in any event. ............................................. 39 

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i.  The ballot storage requirement makes no reference to permitting recounts yet still allows them, just as it allows CORA inspections. ........................................................... 40 

ii.  Construing the storage requirement to prohibit CORA inspections would lead to the nonsensical result that Title 1 ballots may be inspected while Title 31 ballots may not. ............. 41 

V.  CONCLUSION .............................................................................................. 43 

VI.  REQUEST FOR ATTORNEY FEES ........................................................... 43 

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TABLE OF AUTHORITIES

Cases 

American Constitutional Law Found., Inc., v. Meyer, 120 F.3d 1092 (10th Cir. 1992) ......................................................................................................... 12

Ashton Properties, Ltd. v. Overton, 107 P.3d 1014 (Colo. App. 2004) .................... 9

Asphalt Specialties v. City of Commerce City, 218 P.3d 741 (Colo. App. 2009) .............................................................................................................. 8, 9

Bickel v. City of Boulder, 885 P.2d 215 (Colo. 1994) ....................................... 32, 36

Bruce v. City of Colorado Springs, 971 P.2d 679 (Colo. App. 1998) ..................... 31

City of Colorado Springs v. Powell, 48 P.3d 561 (Colo. 2002) .............................. 10

City of Westminster v. Dogan, 930 P.2d 585 (Colo. 1997) ............................... 26, 31

Danielson v. Dennis, 139 P.3d 688 (Colo. 2006) ................................................ 9, 10

Denver Publ’g Co. v. Dreyfus, 520 P.2d 104 (Colo. 1974 .......................... 31, 34, 35

Dorman v. Petrol Aspen, Inc., 914 P.2d 909 (Colo. 1996) ...............................passim

Foiles v. Whittman, 233 P.3d 697 (Colo. 2010) ...............................................passim

Gumina v. City of Sterling, 119 P.3d 527 (Colo. App. 2004) .................................. 31

Lang v. Colorado Mental Health Institute in Pueblo, 44 P.3d 262 (Colo. App. 2001) ....................................................................................................... 34

Mahaffey v. Barnhill, 855 P.2d 847 (Colo. 1993) ....................................... 11, 17, 18

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) .................................... 12

Meyer v. Lamm, 846 P.2d 862 (Colo. 1993) ...................................................... 14, 32

People v. Daniels, --- P.3d ---, 2009 WL 4680250 (Colo. App. 2009) ................... 21

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People v. Disher, 24 P.3d 254 (Colo. 2010) ...................................................... 21, 27

People v. Rodriguez, 112 P.3d 693 (Colo. 2005) .................................................... 10

People v. Yascavage, 101 P.3d 1090 (Colo. 2004) ............................................ 21, 23

Sargent Sch. Dist. No. RE-33J v. Western Svcs., Inc., 751 P.2d 56 (Colo. 1988) .................................................................................................... 26, 27, 31

Taylor v. Pile, 391 P.2d 670 (Colo. 1964) ......................................................... 11, 16

Tidwell v. City & County of Denver, 83 P.3d 75 (Colo. 2003) .......................... 21, 26

Vickery v. Vickery, --- P.3d ---, 2010 WL 963204 (Colo. App. 2010) .............. 41, 42

Voorhes v. Dempsey, 231 F.Supp. 975 (D. Conn. 1964) ......................................... 12

Wilson v. Mosko, 130 P.2d 927 (Colo. 1942) .......................................................... 16

Young v. Simpson, 42 P. 666 (Colo. 1895) .............................................................. 14

Zubeck v. El Paso County Retirement Plan, 961 P.2d 597 (Colo. App. 1998) ....... 31

Constitutional Provisions 

COLO. CONST. art. VII, § 8 ................................................................................passim

Section 4.15 of the Home Rule Charter for the City of Aspen, Colorado ............... 33

Statutes 

1879-1885 Colo. Sess. Laws .................................................................................... 38

Article 10.5 (Recounts), Uniform Election Code of 1992, §§ 1-10.5-101 to -110, C.R.S ........................................................................................................ 13

Colorado Municipal Election Code of 1965, §§ 31-10-101 to -1540, C.R.S. ... 31, 35

Colorado Open Records Act, §§ 24-72-200.1 to -206, C.R.S. .........................passim

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Part 2 (Election Contests), Uniform Election Code of 1992, §§ 1-11-201 to -218, C.R.S. ............................................................................. 13

Part 9 (Paper Ballots), Municipal Election Code of 1965, §§ 31-10-901 to -906, C.R.S. ........................................................................... 27

Part 13 (Contests), Colorado Municipal Election Code of 1965, §§ 31-10-1301 to -1308, C.R.S. ................................................................. 13, 40

Section 1-1-104(1.7), C.R.S. .................................................................. 23, 24, Add.2

Section 1-1-104(11), C.R.S. ......................................................................... 33, Add.3

Section 1-1-104(19.5), C.R.S. .................................................................................. 34

Section 1-7-108, C.R.S. ........................................................................................... 13

Section 1-7-801, C.R.S. ............................................................................... 41, Add.4

Section 1-7-802, C.R.S. ............................................................................... 41, Add.4

Section 1-13-712(1), C.R.S. ......................................................................... 17, Add.3

Section 13-26-102, C.R.S. ....................................................................................... 22

Section 24-72-202(6)(a)(I), C.R.S. .............................................................. 33, Add.4

Section 24-72-202(7), C.R.S. ....................................................................... 33, Add.5

Section 24-72-204(1)(a), C.R.S. .............................................................. 3, 30, Add.5

Section 24-72-204(5), C.R.S. ......................................................................... 2, 32, 43

Section 24-72-204(8)(a), C.R.S. ............................................................ 34, 35, Add.7

Section 24-72-204(8)(c)(II), C.R.S. ............................................................. 33, Add.7

Section 24-72-204(8)(c)(III), C.R.S. ........................................................... 34, Add.8

Section 31-10-1207, C.R.S. ............................................................................... 13, 40

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Section 31-10-1207(1), C.R.S. ................................................................................. 40

Section 31-10-1207(2), C.R.S. ................................................................................. 40

Section 31-10-1207(5), C.R.S. ................................................................................. 40

Section 31-10-1401(1), C.R.S. ......................................................... 31, 32, 35, Add.8

Section 31-10-1517, C.R.S. ......................................................................... 17, Add.8

Section 31-10-606, C.R.S. ....................................................................................... 27

Section 31-10-607, C.R.S. ....................................................................................... 27

Section 31-10-610, C.R.S. ....................................................................................... 27

Section 31-10-610(3), C.R.S. ................................................................................... 13

Section 31-10-616, C.R.S. ........................................................................... 20, Add.9

Section 31-10-616(1), C.R.S. ............................................................................passim

Section 31-10-616(2), C.R.S. ................................................................. 20, 29, Add.9

Section 31-10-803, C.R.S. ....................................................................................... 27

Uniform Election Code of 1992, §§ 1-1-101 to -13-803, C.R.S. .......... 23, 24, 32, 41

Uniform Photographic Copies of Business and Public Records as Evidence Act, §§ 13-26-101 to -104, C.R.S. ................................................................... 22

Rules 

8 COLO. CODE REGS. § 1505-1 (Rule 8.12(5)) ......................................................... 14

C.A.R. 39.5 .............................................................................................................. 43

C.R.C.P. 12(b)(5) ....................................................................................................... 3

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Other Authorities 

29 C.J.S. Elections § 322 (May 2010) ..................................................................... 17

Dennis Cauchon, Newspapers’ recount shows Bush prevailed, USA TODAY (May 15, 2001) <http://www.usatoday.com/news/washington/2001-04-03-floridamain.htm> ........................................................................................ 15

Minnesota Senate Recount | StarTribune.com (visited Oct. 17, 2010) <http://senaterecount.startribune.com/> .......................................................... 15

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED (2002) ......... 24

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I. ISSUES PRESENTED FOR REVIEW

A. Marilyn Marks (“Marks”) sought under the Colorado Open Records

Act (“CORA”) to inspect digitally scanned copies of voted municipal

election ballots. Her request was denied by the City Clerk of Aspen

(the “Clerk”) on the grounds that “secrecy in voting” prohibits any

inspection of the contents of voted ballots. Does secrecy in voting

permit examination of the contents of voted ballots, given that no

ballot may legally be marked in a way that reveals who cast it?

B. Marks’s request was also denied on the grounds that a statute

addressed to the physical maintenance of municipal ballots and

election records after an election requires “ballots” (but not other

election records) to remain in the ballot box until their destruction.

1. Are scanned copies of ballots properly described as “other

official election records,” instead of “ballots,” and thus subject

to a different storage requirement than the Clerk relied on?

2. Even if scanned copies of ballots are “ballots,” does the

maintenance requirement for ballots still fail to create an

exception to CORA’s clear intent for voted ballots to be open to

inspection?

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II. STATEMENT OF THE CASE

A. Nature of the Case

Marks appeals the lower court’s dismissal of her Complaint filed under the

Colorado Open Records Act, §§ 24-72-200.1 to -206, C.R.S. Marks initiated the

underlying civil action after the Clerk denied a CORA request to inspect 2,544

computer files in tagged image file format (the “TIFFs”), each of which contained

the scanned image of an anonymous paper ballot from the City of Aspen’s May

2009 municipal election. The underlying action sought access to the TIFFs and an

award of attorney fees under Section 24-72-204(5), C.R.S.

The fundamental issue in this case is whether CORA allows the people of

Colorado to inspect the election records necessary to verify the elections by which

their government is chosen.

B. Proceedings and Disposition Below

On October 8, 2009, Marks filed her complaint with the district court

seeking an order permitting her to conduct a CORA inspection of the TIFFs and

injunctive relief prohibiting the Clerk from destroying the TIFFs pending

resolution of the case.

On October 16, 2009, the district court granted a preliminary injunction

protecting the TIFFs from destruction until the conclusion of the action. (Tr. Oct

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16, 2009 Status Conf., CD pages 546-47, 553.) At the Clerk’s request, the district

court extended its preliminary injunction to include Aspen’s paper ballots as well

as the TIFFs. (Order Granting Preliminary Injunction, CD pages 579-581)

On November 6, 2009, the Clerk filed a motion to dismiss under C.R.C.P.

12(b)(5), arguing that Marks’s inspection of the TIFFs would violate both the

Colorado Constitution’s requirement of “secrecy in voting, ” see COLO. CONST. art.

VII, § 8, and an election records maintenance statute that requires ballots to

“remain in the ballot box” following an election, see § 31-10-616(1), C.R.S.1

(Def.’s Mem. Supp. Mot. Dismiss, CD pages 83-112.)

On March 10, 2010, the district court accepted these arguments and

dismissed the Complaint for failure to state a claim upon which relief can be

granted. (Order Pending Mots., CD pages 336-37.) The district court held that a

CORA inspection of the TIFFs is barred by contrary law, see § 24-72-204(1)(a),

C.R.S., specifically by the Colorado Constitution and by the ballot storage statute,

and that the law thus offers Marks no relief even under the facts alleged in her

Complaint. (Order Pending Mots., CD pages 336-37.)

1 The motion to dismiss also argued that a CORA inspection would cause substantial injury to the public interest, (Def.’s Mem. Supp. Mot. Dismiss, CD pages 99-111), but the district court did not reach this argument in its order of dismissal.

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C. Statement of the Facts Relevant to the Issues Presented

Marks was a candidate for mayor in the City of Aspen’s May 2009

municipal election. The 2009 election was the first election conducted by the City

of Aspen under new instant runoff voting (“IRV”) rules established by the Aspen

City Council for use in the mayoral and two city council races. On election night,

the tabulation of the votes cast in the races subject to the new IRV rules was

performed by TrueBallot, Inc. (“TrueBallot”), a Maryland company engaged by

the City for this purpose. (Compl., CD pages 2-3.)

The tabulation of the IRV races worked as follows: Voters marked their

votes on paper ballots in the traditional manner and cast their paper ballots at

precinct polling places or by mail, also in the traditional manner. At the close of

voting on election night, all of the paper ballots were brought by the Clerk and her

staff to a central, public tabulation center, where the paper ballots were handed

over to TrueBallot for the complicated task of tabulating the results under Aspen’s

complex IRV rules. (Id., CD page 3.)

TrueBallot’s process for tabulating the IRV races was highly automated.

Each paper ballot was scanned using a digital scanner to produce a computer file in

tagged image file format – a TIFF – that contained a digital image of a single

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underlying voted paper ballot. The 2,544 TIFFs produced by this first step are the

public records that are at issue in this case. (Id., CD pages 3-4.)

Once generated by scanning ballots, the TIFFs were next processed by

interpretation software that detected the presence of voter markings in each of the

IRV races and to generate a “raw” interpretation of the voter’s rankings in each

IRV race on each underlying paper ballot. The raw interpreted rankings for each

race on the underlying paper ballot were combined to produce a “raw data string”

for each paper ballot that represented the voter markings detected from the TIFF

and interpreted by the TrueBallot software. (Id., CD pages 3, 18-20.)

The raw data strings were processed further to produce a “clean data string”

for each ballot. Finally, TrueBallot ran a series of automated queries against the

database of all combined clean data strings to apply Aspen’s IRV rules to the

rankings of all the voters and generate an overall election result in each of the IRV

races (i.e., the mayoral and two city council races). (Id., CD pages 3, 18-20.)

According to TrueBallot’s tabulation of the votes on election night, Marks

was defeated in the mayoral race by less than 200 votes out of a total of nearly

2,500 counted. (Id., CD page 3.)

Because IRV was a new voting system, the City of Aspen and TrueBallot

took a number of steps to assure the public of the integrity of the process. First,

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images of hundreds of the actual paper ballots, complete with voter markings, were

publicly displayed on large screens in the public tabulation center on election night

as the TIFFs were processed by the TrueBallot software. (Id., CD pages 4-5.)

Second, many of the projected images of voted ballots were simultaneously

broadcast live on Aspen public television. (Id., CD pages 5, 24-27.)

Third, two days after the election, the Clerk removed hundreds of actual

paper ballots from the ballot box and conducted an “audit” by comparing voter

markings in selected IRV races to corresponding data strings for those races.

Members of the public observed and verified the comparisons. (Id., CD page 4.)

And fourth, for all 2,544 paper ballots voted in the election, the Clerk

publicly released both the raw and cleaned data strings showing TrueBallot’s

interpretation of the voter markings in each IRV race on each paper ballot. (Id., CD

page 3.)

But the Clerk did not release the TIFFs themselves, without which no

independent verification of the accuracy of TrueBallot’s vote interpretation

software was possible. (Id., CD page 3.)

The clear need for such verification became apparent to Marks on May 28,

2009, when the Clerk issued a press release that revised the election night vote

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totals in response to tabulation errors made by TrueBallot on election night. (Id.,

CD page 4.)

Although the Clerk had learned of the tabulation errors from TrueBallot on

May 19, the public was not informed of the error until nine days later – a full three

days after the end of the statutory period allowed for the commencement of

election contest proceedings. (Id., CD page 4.)

On June 1, 2009, Marks submitted a request to the Clerk, seeking to inspect

the TIFFs as public records under CORA, §§ 24-72-100.1 to -502., C.R.S. (Id.,

CD page 7.) The Clerk denied Marks’s request on the grounds that a ballot

storage statute, § 31-10-616(1), C.R.S., and the constitutional requirement of

secrecy in voting, COLO. CONST. art. VII, § 8, each prohibited any public

inspection of TIFFs or actual ballots, including even those hundreds of each that

had already been publicly displayed on screens in the tabulation center, broadcast

over Aspen public television or viewed by the public during the post-election

“audit.” (Id., CD pages 7-8.)

On August 27, 2009, after almost three months of searching for a way to

address the Clerk’s objections and obtain access to at least some of the TIFFs,

Marks gave the Clerk notice of her intention to apply to the district court for relief

8

under CORA. (Id., CD page 10.) On October 8, 2009, Marks filed the complaint

in this matter and the action ensued.

III. SUMMARY OF ARGUMENT

For the reasons that follow, Plaintiff-Appellant Marilyn Marks is requesting

this Court to reverse the district court’s dismissal of her action seeking under

CORA to inspect electronic reproductions of voted municipal election ballots.

Marks contends that the Colorado Constitution’s provision for secrecy in voting is

directed only at hiding the identity of the voter casting a ballot, not at hiding the

contents of ballots themselves. Where both the Constitution and state statutes

prohibit the marking of ballots to render them identifiable, the law must presume

that the contents of ballots may be examined without compromising the secret of

who cast which ballot. Additionally, Marks contends that a statute requiring

ballots to “remain in the ballot box” is not applicable to electronic reproductions of

ballots such as the TIFFs. And even if the storage requirement is applicable, it still

fails to constitute an exception to CORA that is specifically provided by law.

IV. ARGUMENT

A. Standard of Review.

An appellate court reviews de novo a district court’s order dismissing a case

as a matter of law. See Asphalt Specialties v. City of Commerce City, 218 P.3d

9

741, 744-45 (Colo. App. 2009). In evaluating a dismissal for failure to state a

claim, courts accept all averments of material fact set out in the complaint as true,

and view those allegations in the light most favorable to the plaintiff. See Dorman

v. Petrol Aspen, Inc., 914 P.2d 909 (Colo. 1996). Furthermore, courts consider

only matters stated in the complaint and must not go beyond the confines of the

pleading. See Ashton Properties, Ltd. v. Overton, 107 P.3d 1014 (Colo. App.

2004).

B. “Secrecy in voting” is not violated by the public inspection of anonymous voted ballots.

Standard of Review; Preservation of Issue

Construction of the Colorado Constitution is a question of law that is

reviewed de novo. See Danielson v. Dennis, 139 P.3d 688, 690-91 (Colo. 2006).

The issue of whether a CORA inspection of ballot images violates Article VII,

Section 8, of the Colorado Constitution was preserved as an issue for appeal in

Pl.’s Mem. Resp. Def.’s Mot. Dismiss, CD pages 121-26.

***

The district court erred when it held that the Colorado Constitution’s

mandate of “secrecy in voting” requires the Clerk to “keep the ballots secret,”

thereby dismissing Marks’s Complaint as a matter of law. (Order Pending Mots.,

CD page 337.) The Colorado Constitution states in pertinent part:

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Section 8. Elections by ballot or voting machine. All elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it. The election officers shall be sworn or affirmed not to inquire or disclose how any elector shall have voted. In all cases of contested election in which paper ballots are required to be used, the ballots cast may be counted and compared with the list of voters, and examined under such safeguards and regulations as may be provided by law. Nothing in this section, however, shall be construed to prevent the use of any machine or mechanical contrivance for the purpose of receiving and registering the votes cast at any election, provided that secrecy in voting is preserved.

….

COLO. CONST. art. VII, § 8 (emphasis added).

1. Construction of the Colorado Constitution.

Constitutional interpretation employs the same construction rules applicable

to interpreting statutes, namely, courts “start with the words, give them their plain

and commonsense meaning, and read applicable provisions as a whole,

harmonizing them if possible.” Danielson, 139 P.3d at 691. When a phrase has

plain meaning or is defined, resort to rules of statutory interpretation is not

required, but when a phrase is not defined and does not have a plain meaning,

courts look to other sources of law. See City of Colorado Springs v. Powell, 48

P.3d 561, 564 (Colo. 2002). Colorado courts avoid interpretations of the

Constitution that produce absurd results. See People v. Rodriguez, 112 P.3d 693,

696 (Colo. 2005).

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2. “Secrecy in voting” protects the secret of who cast which ballot, not the anonymous voter markings on ballots.

Read as a whole, Article VII, Section 8, is clearly addressed to ensuring the

anonymity of ballots, not the secrecy of their contents.

a. “Secrecy in voting” protects the anonymity of voted ballots.

The term “secrecy in voting” is not defined in the Colorado Constitution or

in state statute. But the phrase has plain meaning in the context of its use.

The very same subsection that provides for “secrecy in voting” forbids

ballots to be marked “in any way” that makes them personally identifiable. See

COLO. CONST. art. VII, § 8. This prohibition on the identifiable marking of ballots

is the only secrecy-related concept in the subsection that is antecedent to the

proviso requiring preservation of “secrecy in voting” when machines are used to

receive and register votes. Read as a whole, the plain language of the subsection

containing these provisions shows that the concern of Article VII, Section 8, is to

protect the anonymity of the voter in casting her ballot.

This interpretation has been implicitly upheld twice by the Colorado

Supreme Court. See Mahaffey v. Barnhill, 855 P.2d 847, 850 (Colo. 1993)

(secrecy in voting means good faith voters cannot be compelled after the fact to

disclose how they voted); Taylor v. Pile, 391 P.2d 670, 673 (Colo. 1964) (secrecy

12

in voting protects the voter’s refusal to testify about her vote). Other courts that

have considered the nature of the “secret ballot” agree that its object is to secure

ballot anonymity. See, e.g., American Constitutional Law Found., Inc., v. Meyer,

120 F.3d 1092, 1102 (10th Cir. 1992) (“our nation's tradition of anonymous

political expression ‘is perhaps best exemplified by the secret ballot” (quoting

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995)) (emphasis

added)); Voorhes v. Dempsey, 231 F.Supp. 975 (D. Conn. 1964) (a voting

procedure provides a “secret ballot” where “No one outside the booth can tell for

which candidates or party a ballot has been cast, or indeed, whether an elector has

voted for any candidates at all”), aff’d per curiam, 379 U.S. 648 (1965).

Importantly, nothing in Article VII, Section 8, or any of the foregoing cases

suggests that the content of a ballot is in any way secret.

b. The content of a voted ballot that has been separated from the voter is emphatically not secret.

Law and common sense dictate that secrecy in voting cannot reasonably be

understood to render the contents of voted ballots secret.

i. The conduct of elections would be impossible if the contents of voted ballots were a constitutionally mandated secret.

Secrecy in voting under Article VII is not directed only at the public. See

COLO. CONST. art. VII, § 8. It is directed at the entire world, including the

13

government. If secrecy in voting is interpreted to shield a ballot’s contents from

the eyes of the public, it must with equal force also shield that ballot’s contents

from the eyes of the government, including the government tabulator who can

count votes only by examining the contents of voted ballots. It bears stating

therefore, although it is perhaps self-evident, that if the contents of ballots are

themselves inherently secret, the absurdity results that votes in an election may not

constitutionally be counted.

ii. Colorado’s election laws pervasively assume that the contents of voted ballots are not secret.

Many of Colorado’s election laws would not pass constitutional muster if the

contents of ballots were required to be kept secret by Article VII, Section 8. The

law’s varied provisions for watchers,2 election contests,3 and election recounts,4

each of which is provided for by statute and all of which to some degree involve

the examination of the contents of voted ballots, frequently by private persons

2 See, e.g., § 1-7-108, C.R.S.; § 31-10-610(3), C.R.S. 3 See §§ 1-11-201 to -218, C.R.S.; §§ 31-10-1301 to -1308, C.R.S. 4 See §§ 1-10.5-101 to -110, C.R.S.; § 31-10-1207, C.R.S.

14

(e.g., media observers),5 often in public proceedings,6 illustrate that Colorado’s

election laws pervasively assume that the contents of voted ballots are not secret.

Indeed, except for her posture in this litigation, even the Clerk does not

appear to believe the contents of voted ballots are secret. Otherwise, she

presumably would not have arranged for images of Aspen’s ballots to be projected

onto large public screens in the tallying center on election night, or for as many as

468 of those images to be broadcast simultaneously to the entire Aspen community

over local public television, (Def.’s Reply Mem. Supp. Mot. Dismiss, CD page

143).

iii. Famous cases of recounts in which ballots have been publicized show that the contents of voted ballots are widely understood not to be secret.

This Court may readily take judicial notice of two famous public ballot

examinations in contested elections that further illustrate the degree to which it is

widely understood that ballot contents are not secret. First, it is widely known that,

following the hotly contested U.S. presidential election recount in Florida in 2000,

5 See, e.g., 8 COLO. CODE REGS. § 1505-1 (Rule 8.12(5)) (Dec. 8, 2009) (instructing unsworn media observers, “Please do not report anything that could be used to identify the person who casts a particular ballot”) 6 See, e.g., Meyer v. Lamm, 846 P.2d 862, 877-78 (Colo. 1993 (examining write-in content to ascertain voter intent); Young v. Simpson, 42 P. 666, 668 (Colo. 1895) (describing voter markings in published opinion).

15

a media consortium made up of USA Today, the Miami Herald and the Knight-

Ridder newspaper chain conducted a review of the actual ballots to verify the vote

tally reached by Florida elections officials.7 Second, it is also widely known that,

following the U.S. Senate election recount in Minnesota in 2008, the Minneapolis

Star-Tribune created a website that posted scanned images of 6,700 contested

ballots so that members of the public could compare their interpretations with

those of election judges.8

These examples show that the concept of secrecy in voting is widely

understood to protect the anonymity of the voter, not the contents of her ballot.

3. The anonymity of Aspen’s voted ballots, which is protected by “secrecy in voting,” must be presumed as a matter of law.

In evaluating a motion to dismiss, courts view the averments of material fact

set out in the complaint in the light most favorable to the plaintiff. See Dorman v.

Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996). Doing so in this case means

presuming that Aspen’s voted ballots are anonymous, both because they are so

alleged and because they are required to be anonymous under Colorado law.

7 See Dennis Cauchon, Newspapers’ recount shows Bush prevailed, USA TODAY (May 15, 2001) <http://www.usatoday.com/news/washington/2001-04-03-floridamain.htm>. 8 See Minnesota Senate Recount | StarTribune.com (visited Oct. 17, 2010) <http://senaterecount.startribune.com/>.

16

a. Allegations that Aspen’s voted ballots are anonymous must be credited as true.

The complaint alleges the paper ballots from which the TIFFs were created

are anonymous. (Compl., CD pages 1 ¶ 1, 5 ¶ 33.) These allegations must be

credited as true. See Dorman, 914 P.2d at 911.

b. Aspen’s voted ballots must be presumed to be anonymous as a matter of law.

i. Courts presume that laws prohibiting the identifiable marking of a ballot are obeyed.

It is illegal for a Colorado voter to mark her own ballot to render it

identifiable. See § 31-10-1517, C.R.S.; § 1-13-712(1), C.R.S. The Colorado

Constitution also prohibits the identifiable marking of paper ballots. See COLO.

CONST. art. VII, § 8. This Court should presume that Aspen’s paper ballots

comply with these laws and are anonymous. See Wilson v. Mosko, 130 P.2d 927,

930 (Colo. 1942) (“[T]he presumption is that men intend to obey rather than to

violate the law.”). To presume the opposite – i.e., that the ballots are identifiable –

is foreclosed by Taylor v. Pile, 154 Colo. 516, 523 (1964) (“[W]hen the undisputed

fact was made to appear that all the ballots cast were not secret ballots, it was the

duty of the court to declare the election void….”).

17

ii. A Colorado voter may legally waive the privilege of “secrecy in voting,” but not by rendering her ballot identifiable.

Although some States treat secrecy of the ballot “as a rule of public policy

that cannot be waived,” 29 C.J.S. Elections § 322 (May 2010), Colorado is not one

of those States, see Mahaffey v. Barnhill, 855 P.2d 847, 851 (Colo. 1993) (“This

privilege [of secrecy in voting] is personal, and it is for the voter to determine

whether to invoke its protection.”). A Colorado voter may choose to waive the

privilege of keeping how she voted a secret. But in exercising this right, she still

must observe statutes that prohibit her from marking her ballot itself to be

identifiable.9 See § 31-10-1517, C.R.S.; § 1-13-712(1), C.R.S. (making it a

misdemeanor for a voter to show her voted ballot to anyone or to mark her ballot to

be personally identifiable).

iii. Even if a voter has illegally marked her ballot to be identifiable, such markings should be deemed to waive the personal privilege of secrecy in voting, per Mahaffey.

In view of the balance between the individual’s ability to waive the personal

privilege of “secrecy in voting,” permitted by Mahaffey, 855 P.2d at 851, and the

statutory requirements that ballots must not themselves be rendered identifiable

9 Such statutory requirements hinder vote buying schemes.

18

under penalty of committing a misdemeanor, any ballot that is marked to be

identifiable must necessarily be viewed by this Court as falling somewhere

between a waiver of the constitutional privilege and its protections, on one hand,

and a misdemeanor warranting prosecution rather than protection, on the other.

In either case, any voter who has rendered her own ballot identifiable is

hardly entitled to the continued protection of Article VII, Section 8. In situations

where a voted ballot is identifiable – which, importantly, cannot be presumed to

apply to any of the underlying ballots in this case, see Dorman., 914 P.2d at 911 –

this Court should deem an identifiably marked ballot to constitute an implicit

waiver by the voter of that ballot of her personal privilege of secrecy in voting

under Mahaffey, 855 P.2d at 851. Otherwise, voters who have violated the law by

marking their ballots to be identifiable are “rewarded” by seeing their marked

ballots shielded from public examination or, worse, election officials like the Clerk

here will gain an excuse to engage in the prophylactic denial of the public’s right to

inspect the contents of all TIFFs because of the mere possibility that some

underlying ballots might have been identifiably marked in violation of Colorado

law.

4. The TIFFs are anonymous to the same extent as the underlying voted ballots.

19

The Complaint alleges that the TIFFs are scanned images of the voted paper

ballots, (Compl., CD page 3 ¶ 15.), and that the paper ballots are anonymous, (Id..,

CD pages 1 ¶ 1, 5 ¶ 33.). Viewed in the light most favorable to the Plaintiff, these

allegations necessarily imply that the TIFFs, like the paper ballots, are also

anonymous and that their examination cannot therefore violate secrecy in voting.

***

It is no secret that a particular person has voted in a particular election. It is

likewise no secret what the vote totals are in any particular election, even down to

the precinct level. Even the contents of individual ballots themselves are no secret,

since ballots are routinely subject to intense scrutiny by partisans and the media

during recounts and contest proceedings. What is secret in the voting context –

indeed, what is the only secret – is the secret of who cast which vote. This secret is

not one that is compromised as a matter of law by an examination of anonymous

voted ballots . Thus the district court erred when it dismissed the Complaint on the

basis of Article VII, Section 8.

C. The provision of the municipal election records maintenance statute that applies to “ballots” does not apply to the TIFFs.

Standard of Review; Preservation of Issue

Statutory construction is a question of law that is reviewed de novo. See

Foiles v. Whittman, 233 P.3d 697, 699 (Colo. 2010). The issue of whether

20

electronic reproductions of ballots constitute “ballots” for purposes of Section

31-10-616(1), C.R.S., was preserved for appeal in Pl.’s Mem. Resp. Def.’s Mot.

Dismiss, CD pages 129-33.

***

The district court erred when it held that the TIFFs are “ballots” for purposes

a provision of the municipal election records maintenance statute that applies to

ballots (and which the district court further construed as contrary to CORA),

thereby dismissing Marks’s Complaint as a matter of law. (Order Pending Mots.,

CD page 337.) Section 31-10-616, C.R.S., provides:

31-10-616. Preservation of ballots and election records. (1) The ballots, when not required to be taken from the ballot box for the purpose of election contests, shall remain in the ballot box in the custody of the clerk until six months after the election at which such ballots were cast or until the time has expired for which the ballots would be needed in any contest proceedings, at which time the ballot box shall be opened by the clerk and the ballots destroyed by fire, shredding, or burial, or by any other method approved by the executive director of the department of personnel. If the ballot boxes are needed for a special election before the legal time for commencing any proceedings in the way of contests has elapsed or in case such clerk, at the time of holding such special election, has knowledge of the pendency of any contest in which the ballots would be needed, the clerk shall preserve the ballots in some secure manner and provide for their being kept so that no one can ascertain how any voter may have voted. (2) The clerk shall preserve all other official election records and forms for at least six months following a regular or special election.

See § 31-10-616, C.R.S. (emphasis added).

21

Because the TIFFs are properly construed to be “other official election

records,” and not “ballots,” they are not subject to the requirements of subsection

(1), which applies only to “ballots.”

1. Applicable Rules of Statutory Construction.

In construing terms used in a statute, courts read words and phrases in

context “and construe them literally according to common usage unless they have

acquired a technical meaning by legislative definition.” People v. Yascavage, 101

P.3d 1090, 1093 (Colo. 2004) (construing the phrase “legally summoned”). When

a statute does not define its terms but the words used are terms of common usage,

courts may refer to dictionary definitions to determine the plain and ordinary

meaning of those words. See People v. Daniels, --- P.3d ---, 2009 WL 4680250 at

*2 (Colo. App. 2009); see also Tidwell v. City & County of Denver, 83 P.3d 75, 81

(Colo. 2003) (holding that the dictionary is an appropriate source from which to

glean the plain and ordinary meaning of a statutory term). “[A]bsent some

ambiguity we look no further.” People v. Disher, 24 P.3d 254, 256 (Colo. 2010)

(construing the phrase “intimate relationship”). But if the language is ambiguous,

courts rely on other factors, including legislative history, the consequences of a

given construction and the end to be achieved by the statute. See id. Throughout

this exercise, “All related provisions of an act must be construed as a whole; thus if

22

more than one statute addresses an issue, the statutes should be read together.”

Foiles, 233 P.3d at 699.

2. The district court’s reliance on the Uniform Photographic Copies of Business and Public Records as Evidence Act instead of rules of statutory construction was misplaced.

The district court mistakenly relied upon the Uniform Photographic Copies

of Business and Public Records as Evidence Act (the “UPCBPREA”), §§ 13-26-

101 to -104, C.R.S., to justify construing electronic reproductions of ballots as the

equivalent of “ballots.” (Order Pending Mots., CD page 337 ¶ 11.) But the

UPCBPREA was never meant to replace the rules of statutory construction.

Instead, the UPCBPREA exists only to ensure the evidentiary admissibility of

copies of original documents in court proceedings. See § 13-26-102, C.R.S. The

rules of statutory construction, not the UPCBPREA, dictate whether the term

“ballot” can properly be construed to include electronic reproductions of ballots for

purposes of the municipal election records maintenance statute.

3. The TIFFS are not properly construed to be “ballots.”

Under the rules of statutory construction, the term “ballot” cannot be

construed to include the TIFFs. Ballots are legal instruments that possess an

inherent legal significance that is part of what makes the instrument a ballot. This

legal significance is not imparted to mere copies, but remains inherent only in the

23

tangible physical item that is the original. The statutory meaning of the term

“ballot” should be construed to reflect this reality.

a. The “plain and ordinary meaning” of the term “ballot” does not include the TIFFs.

“Ballot” is not defined in Title 31. Possible sources of its meaning therefore

may be sought either in legislative definitions elsewhere (e.g., in Title 1), see

Yascavage, 101 P.3d at 1093, or by reference to the literal meaning of the word as

given in a dictionary, see Daniels, 2009 WL 4680250 at *2. Regardless of which

source this Court employs, the plain and ordinary meaning of the word “ballot” is

not properly understood to include electronic reproductions like the TIFFs in this

case.

i. Title 1’s definition of “ballot” is not ambiguous and does not describe the TIFFs.

The Uniform Election Code of 1992, §§ 1-1-101 to -13-803, C.R.S.

(“Title 1”), defines “ballot” as “the list of all candidates, ballot issues, and ballot

questions upon which an eligible elector is entitled to vote at an election.” See §

1-1-104(1.7), C.R.S.

This definition is unambiguous in describing a ballot as the physical list that

is directly marked by a voter to express her electoral preferences. The definition’s

use of the definite article indicates the ballot is a specific list, namely the one

24

“upon which” the voter makes her actual voting mark “at” the election. An

electronic reproduction of a voted ballot is obviously not “the list … upon which

an eligible elector is entitled to vote at an election.” § 1-1-104(1.7), C.R.S.

(emphasis added). This definition does not describe the electronic reproductions

like the TIFFs.

ii. The dictionary’s definition of “ballot” is not ambiguous and does not describe the TIFFs.

Webster’s Third New International Dictionary, Unabridged defines the noun

“ballot” as follows:

1 a : a small ball dropped into a box or urn in secret voting b :a ticket or sheet of paper (as one printed with the candidates' names or

the proposition to be voted on) used to cast a secret vote (as during public elections) – see AUSTRALIAN BALLOT

2 a : the action or system of secret voting by the use of ballots or by any device for casting or recording votes (as a voting machine)

b : the right to vote in such a way c : 1VOTE 1a 3 : the whole number of votes cast at an election 4 : the drawing of lots

See “ballot,” WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED

(2002) (Oct. 17, 2010) <http://unabridged.merriam-webster.com>.

The single word sense that might be understood here to include electronic

reproductions like the TIFFs is 1b. But this meaning, like the definition in Title 1,

unambiguously applies only to the actual physical medium “used to cast” a vote.

25

As the allegations in the complaint make clear, not only were the TIFFs not used

by any Aspen voters to cast their votes, but they did not even exist until after the

close of voting and were only created as part of the tabulation process. (Compl.,

CD pages 3, 5.)

iii. The Complaint’s allegations about the nature of the TIFFs, viewed in the light most favorable to Marks, cannot support construing the TIFFs to be ballots.

When viewed in the light most favorable to Marks, see Dorman, 914 P.2d at

909, the factual averments of the complaint about how the TIFFs came into

existence can only weigh against any construction of the term “ballots” that

conflates the actual voted paper ballots with the electronic reproductions of those

ballots in the form of the TIFFs. The paper ballots are physical instruments with

independent legal significance. Ballots are the physical medium touched by the

voters. The paper ballots contain the actual expressions of voter intent that

determine the outcome of the election, while the TIFFs are simply electronic files

created after the close of voting as a means to tally the results. These differences

weigh in a very practical sense against treating the TIFFs as “ballots.”

b. Even if the statutory term “ballot” is sufficiently ambiguous to allow it to include electronic reproductions such as the TIFFs, other factors weigh against such a construction.

26

i. Exceptions to CORA must be narrowly construed.

Exceptions to the broad, general right of public inspection under CORA

must be narrowly construed. See Sargent Sch. Dist. No. RE-33J v. Western Svcs.,

Inc., 751 P.2d 56 (Colo. 1988). This rule of construction is supplemental to the

ordinary rules of statutory construction. Cf. Tidwell v. City & County of Denver, 83

P.3d 75, 81 (Colo. 2003) (applying a rule of construction specific to the subject

area in addition to the ordinary construction rules).

Here, the broader the construction given to the term “ballot,” the more

records there are that may be excluded from public inspection under CORA

(assuming arguendo that municipal ballots are, in fact, exempted from CORA

because of how they must be stored). In these circumstances, the rule recognized

in Sargent dictates that the term “ballot” must be interpreted narrowly with

reference to the “explicit language of the statute.” Sargent, 751 P.2d at 60.

Where, as here, the word “ballot” as used in the storage statute suggests no

ascertainable legislative intent for anything but the literal meaning of the word to

apply, the narrow construction rule is even more appropriate. See City of

Westminster v. Dogan, 930 P.2d 585 (Colo. 1997).

Any narrow interpretation of the term “ballot” must exclude electronic

reproductions.

27

ii. A construction of “ballots” that includes reproductions of ballots within its meaning is likely to produce negative consequences.

Foiles v. Whittman, 233 P.3d at 697, provides that, “All related provisions of

an act must be construed as a whole.” Under this directive, a factor that must be

considered as weighing strongly against the district court’s construction of

“ballots” for purposes of the election records maintenance provision is the

consequence of applying the district court’s construction to every other instance in

Title 31 where the word “ballot” is used. See Disher, 24 P.3d at 254 (where

language is ambiguous other factors include the consequences of a given

construction); Sargent, 751 P.2d at 60 (“Separate clauses within a statute should be

interpreted to give effect to the entire statute.”).

Title 31 makes heavy use of the term “ballot,” including in ways that would

be rendered, at worst, nonsensical and, at best, puzzling if the term were

interpreted expansively to include copies or images of ballots. See, e.g., §§ 31-10-

901 to -906, C.R.S. (detailing physical requirements for paper ballots); § 31-10-

803, C.R.S. (specifying requirements for the use of ballots in electronic voting);

§§ 31-10-606 to -607, -610, C.R.S. (discussing the use of ballots in voting

generally).

28

An additional complication, moreover, is that the construction ultimately

settled upon will have to be applied to all the facts of the case. This means that

once the TIFFs are construed to be “ballots” for purposes of applying the ballot

storage requirement, there will arise an immediate need to find a principled way

for “ballots” to be distinguished from the hundreds of digital images of ballots that

were broadcast by the Clerk on local TV on election night, (Compl., CD page 5;

Def.’s Reply Mem. Supp. Mot. Dismiss, CD page 143); and from the source TIFFs

that resided on the memory and hard drives of TrueBallot’s computers on election

night, from which the TIFFs now sought by Marks were burned to CD-ROM,

(Compl., CD page 5); and even from the four photographic images of ballots that

the Clerk herself included as exhibits to her reply supporting the motion to dismiss,

(Def.’s Reply Mem. Supp. Mot. Dismiss, CD pages 176-79).

After all, none of these various types of reproductions of ballots are

inherently any different from the TIFFs, except possibly in terms of their relatively

lower fidelity, in some (but not all) cases, to the original ballots. If the term

“ballots” is properly construed to include reproductions of ballots, then each of

these items, like the TIFFs, will equally be subject to the requirement that they

“remain in the ballot box” alongside Aspen’s actual voted ballots. See § 31-10-

29

616(1), C.R.S. The absurdity of this result highlights the only correct construction

of the term “ballots”: Reproductions are not within the meaning of the word.

4. The provision of the municipal election records preservation that applies to “all other official election records” properly applies to the TIFFs.

Because the TIFFs cannot properly be construed to be “ballots,” they must

fall within the catch-all category of “all other official election records.” As such,

the TIFFs are subject only to the requirement that, “The clerk shall preserve all

other official election records and forms for at least six months following a regular

or special election.” § 31-10-616(2), C.R.S. (emphasis added). This provision

contains nothing that may reasonably be construed to prohibit a CORA inspection.

***

Electronic reproductions of ballots are not ballots. Thus the district court

erred when it held that a storage requirement that applies to ballots (but not to all

other official election records) also applies to the TIFFs.

D. Even if the TIFFs are “ballots,” the requirement for ballots to remain in the ballot box fails to create an exception to CORA’s clear intent for all anonymous election records to be open to inspection.

Standard of Review; Preservation of Issue

Statutory construction is a question of law that is reviewed de novo. See

Foiles, 233 P.3d at 699. The issue of whether a storage requirement for municipal

30

ballots creates an exception to the public’s right inspect to inspect voted ballots as

election records under CORA was preserved for appeal in Pl.’s Mem. Resp. Def.’s

Mot. Dismiss, CD pages 127-29 and 133-36 and in Pl.’s Rule 59(a)(4) Mot. Amend

J., CD pages 342-43.

***

Even if a construction of the term “ballots” that includes the TIFFs is

permissible, the district court nevertheless erred when it held that the provision of

the municipal election records maintenance statute requiring ballots to remain in

the ballot box is effective to create an exception to CORA.

1. Applicable Rules of Statutory Construction.

CORA requires the custodian of “any public records” to allow the inspection

of those records unless such inspection “would be contrary to any state statute.”

§ 24-72-204(1)(a), C.R.S.10 Resolving whether a statute is contrary to the right of

inspection conferred on the public by CORA requires the allegedly contrary statute

to be construed together with CORA.

a. Exceptions to CORA are narrowly construed and must be specifically provided by law if set out in contrary statutes.

10 Other exceptions apply, but the only exception at issue here is the exception for contrary state statutes under § 24-72-204(1)(a), C.R.S.

31

The broad, general policy of CORA provides a presumption in favor of

disclosure of public records. See City of Westminster v. Dogan, 930 P.2d 585, 589

(Colo. 1997); Zubeck v. El Paso County Retirement Plan, 961 P.2d 597, 601 (Colo.

App. 1998). Exceptions to this policy are to be narrowly construed, subject only to

the explicit language of the exception. See Sargent, 751 P.2d at 60; see also

Gumina v. City of Sterling, 119 P.3d 527 (Colo. App. 2004). Furthermore, the only

permissible exceptions to the right of inspection are those “provided for in the act

itself or otherwise specifically provided by law.” Denver Publ’g Co. v. Dreyfus,

520 P.2d 104, 107 (Colo. 1974) (emphasis in original). The specificity

requirement for exceptions set out in contrary statutes was pointedly emphasized

by the Supreme Court in Dreyfus, when the Court reiterated that, “The act itself

requires that exceptions be specifically provided by law.” Id. at 108 (emphasis in

original).

b. The Colorado Municipal Election Code of 1965 is construed with a view to obtaining substantial compliance with its provisions.

The Colorado Municipal Election Code of 1965, §§ 31-10-101 to -1540,

C.R.S.(“Title 31”), is construed “with a view to obtaining a substantial compliance

with the provisions of this article.” § 31-10-1401(1), C.R.S.; see also Bruce v. City

of Colorado Springs, 971 P.2d 679, 685 (Colo. App. 1998) (applying substantial

32

compliance standard to claim for denial of secret ballot).11 “In applying the

substantial compliance standard, “the purpose of [the statute] must be kept firmly

in mind.” Meyer v. Lamm, 846 P.2d 862, 878 (Colo. 1993). Factors determining

whether substantial compliance is satisfied include “(1) the extent of the …

noncompliance …, (2) the purpose of the provision violated and whether that

purpose is substantially achieved despite the … noncompliance, and (3) whether [a

good faith effort to comply can be reasonably inferred].” See Bickel v. City of

Boulder, 885 P.2d 215, 227 (Colo. 1994) (explaining substantial compliance in

Title 1 context).

2. CORA allows the public inspection of “election records” including voted ballots and TIFFs.

The plain language of CORA unambiguously provides for anonymous

election records, including voted ballots, to be open to public inspection.

a. Ballots and TIFFs are “public records” and “election records” as defined in CORA.

11 Although this action was brought under CORA, see § 24-72-204(5), C.R.S., rather than under Section 31-10-1401, C.R.S., nothing in Section 1401 suggests that any standard other than substantial compliance applies in cases brought outside of Section 1401’s summary procedures.

33

The parties agree that both the ballots from Aspen’s May 2009 municipal

election and the TIFFs are public records subject to CORA.12 (Mem. Supp. Mot.

Dismiss, CD page 89.) CORA’s statutory definitions support this agreement:

Ballots and digital scans of ballots are both “writings,” see § 24-72-202(7), C.R.S.,

and both here are thus “public records,” which CORA defines to include “all

writings made, maintained, or kept by the state, … or political subdivision of the

state….” § 24-72-202(6)(a)(I), C.R.S.

But CORA also addresses itself particularly to “election records,” which

“includes but is not limited to … voted ballots, unused ballots, spoiled ballots, and

replacement ballots.” § 24-72-204(8)(c)(II), C.R.S. (incorporating the meaning set

forth in § 1-1-104(11), C.R.S.) (emphasis added). Both voted ballots, which are

expressly included in this definition, and scanned images such as TIFFs, which are

not, are “election records” for purposes of CORA.

b. CORA allows the inspection of election records that do not contain specific types of personal information.

In Section 24-72-204, subsection (8)(a), CORA provides:

(8)(a) A designated election official shall not allow a person, other than the person in interest, to inspect the election records of any person that contain

12 There is no dispute that CORA applies to the City of Aspen and governs access to the records sought in this case pursuant to Section 4.15 of the Home Rule Charter for the City of Aspen, Colorado. (Compl., CD page 2 ¶ 8.)

34

the original signature, social security number, month of birth, day of the month of birth, or identification of that person, including electronic, digital or scanned images of a person’s original signature, social security number, month of birth, day of the month of birth, or identification.13

See § 24-72-204(8)(a), C.R.S. (emphasis added).

By establishing an exception to inspection by the general public for election

records that contain specific items of personal information, this subsection affirms

both by obvious implication and as a matter of law that it is CORA’s legislative

intent for all other election records to remain open to public inspection. See Lang

v. Colorado Mental Health Institute, 44 P.3d 262, 264 (Colo. App. 2001) (“An

exception in a statute amounts to an affirmation of the application of its provisions

to all other cases not excepted and excludes all other exceptions.”); see also

Dreyfus, 520 P.2d at 108 (carving autopsy reports out of the types of medical data

that CORA prohibits the public to inspect “is convincing evidence of legislative

intent to classify autopsy reports as public records open to inspection….”)

Because an exception implies the existence of a general rule, CORA is

properly understood as allowing the inspection of anonymous election records.

c. Ballots do not contain the kinds of identifying information that would exempt them from public inspection.

13 “Identification” as used in subsection (8) refers to an identification document. See § 24-72-204(8)(c)(III), C.R.S. (referencing § 1-1-104(19.5), C.R.S.).

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As previously noted, the Colorado Constitution provides that, “[I]n case

paper ballots are required to be used, no ballots shall be marked in any way

whereby the ballot can be identified as the ballot of the person casting it.” COLO.

CONST. art. VII, § 8. This requirement means that paper ballots like those used in

Aspen’s May 2009 municipal election must bear none of the personal information

set out in Section 24-72-204(8)(a), C.R.S. The Aspen paper ballots – and, by

extension, the TIFFs created from the ballots – are anonymous election records

subject to inspection under CORA.

3. The ballot storage requirement does not create an exception to CORA.

The district court erred when it construed the ballot storage provision as

establishing an exception to CORA. (Order Pending Mots., CD page 337.) The

requirement that ballots “shall remain in the ballot box” may appear incompatible

in a literal sense with a physical inspection of ballots. But the requirements of the

Municipal Election Code do not demand literal compliance, only substantial

compliance. And where statutory language constitutes only a tenuous and indirect

exception to CORA when taken literally, that same language certainly falls short of

an exception “specifically provided by law,” Dreyfus, 520 P.2d at 107, 108, when

it is interpreted only “with a view to obtaining substantial compliance,” see § 31-

10-1401(1), C.R.S.

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a. The ballot storage requirement is not an exception to CORA that is “specifically provided by law.”

The ballot storage requirement on its face says nothing specifically to

address whether ballots, though required to “remain in the ballot box in the custody

of the clerk,” are thereby exempt from any form of inspection otherwise provided

for by law. See § 31-10-616(1), C.R.S. Any conclusion that a CORA inspection is

prohibited can only be an inference. In fact, the ballot storage provision itself

contemplates that the ballots may be removed from the ballot box for the mundane

purpose of making the ballot box available for some other election. See id. Instead

of being a specific exception to the public’s right of inspection under CORA, the

ballot storage provision at issue here is really nothing more than a records

maintenance statute. As such, it can be substantially complied with, even while

allowing CORA inspections to take place.

b. The ballot storage requirement is not contrary to CORA because ballots may be inspected in substantial compliance with the storage provision.

As noted previously, in determining whether substantial compliance is

satisfied, courts consider “(1) the extent of the … noncompliance …, (2) the

purpose of the provision violated and whether that purpose is substantially

achieved despite the … noncompliance, and (3) whether [a good faith effort to

comply can be reasonably inferred].” See Bickel, 885 P.2d at 227. Consideration

37

of these factors shows that permitting a CORA inspection of voted ballots

substantially complies with the ballot storage requirement.

i. The extent of noncompliance with the storage requirement during a CORA inspection is minimal.

The extent of noncompliance caused by a CORA inspection of TIFFs is

negligible. The disk containing the TIFFs may be removed from the ballot box,

copied to a new disk and then immediately replaced in the ballot box – a process

that requires only moments. In such a short span of time, the degree of

noncompliance with the requirement for “ballots” to remain in the ballot box is not

only de minimis, but it is also substantially less than the noncompliance that

occurred when the Clerk removed hundreds of actual ballots from the ballot box to

conduct her own post-election audit. (Compl., CD page 4.)

ii. The purpose of the storage requirement is substantially achieved despite any incidental noncompliance.

The purpose of the ballot storage requirement is not stated in the statute,

although the language does require the clerk to “preserve the ballots in some secure

manner and provide for their being kept so that no one can ascertain how any voter

may have voted.” See § 31-10-616(1), C.R.S. The Clerk argued below that this

language shows that the purpose of the ballot storage requirement is to protect both

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the contents and the physical security of the ballots. (Def.’s Mem. Supp. Mot.

Dismiss, CD pages 90-94.)

To the extent that the purpose of the ballot storage requirement is to preserve

anonymity of the paper ballots, this purpose is completely unaffected by a CORA

inspection of ballots or TIFFs. As discussed in Section IV.B., supra, the

anonymity of voted ballots is not compromised by an examination of their

contents.

The statute’s reference to preserving anonymity is a vestige of the storage

requirement’s origin in language initially drafted14 at a time when Colorado’s

Constitution actually required ballots to be personally identifiable. See COLO.

CONST. 1877 art. VII, § 8 (“All elections by the people shall be by ballot; every

ballot voted shall be numbered in the order in which it shall be received, and the

number be recorded by the election officers on the list of voters opposite the name

of the voter who presents the ballot.”) Ever since the Colorado Constitution was

amended in 1946 to provide that “no ballots shall be marked in any way whereby

the ballot can be identified as the ballot of the person casting it,” COLO. CONST. art.

VII, § 8, the purpose of the ballot storage requirement is substantially complied

14 See 1879-1885 Colo. Sess. Laws 186-87.

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with as a matter of course insofar as the identifiable marking of ballots is no

longer constitutionally or statutorily permitted in Colorado.

To the extent that the purpose of the ballot storage requirement is to protect

the physical integrity and security of ballots, this purpose is also unaffected by an

examination of TIFFs. The temporary removal of a disk containing TIFFs from

the ballot box for purposes of copying the TIFFs onto an inspection disk or even

inserting the disk directly into an inspection computer has no effect on the integrity

or security of either voted ballots or the TIFFs themselves. The Clerk expressly

conceded this point below, (Def.’s Mem. Supp. Mot. Dismiss, CD page 93 [“It is

certainly true that making ballot images, as opposed to the ballots themselves,

available for public inspection would not compromise the physical security of the

original ballots.”] (emphasis in original)).

It is readily apparent that the purposes of the ballot storage requirement can

be substantially achieved despite any noncompliance incidental to an inspection of

the TIFFs.

c. Strict adherence to the ballot storage requirement is inappropriate in any event.

This Court’s construction of the ballot storage requirement must take into

account related provisions of law. See Foiles v. Whittman, 233 P.3d at 697 (“All

40

related provisions of an act must be construed as a whole; thus if more than one

statute addresses an issue, the statutes should be read together.”).

i. The ballot storage requirement makes no reference to permitting recounts yet still allows them, just as it allows CORA inspections.

The district court mistakenly stated that “contest proceedings” under

Sections 31-10-1301 to -1308, C.R.S., are the only circumstance in which ballots

may be accessed after an election. (Order Pending Mots., CD page 337 ¶ 9.)

Under this literal reading, the ballot storage requirement would prohibit the

conduct of recounts, § 31-10-1207, C.R.S. Whether triggered automatically, see §

31-10-1207(1), C.R.S., or conducted at the request of any interested party, see §

31-10-1207(2), C.R.S., a recount necessarily requires the removal of ballots from

the ballot box. See § 31-10-1207(5), C.R.S. (“[i]n precincts using paper or

electronic ballots, the recounts shall be of the ballots cast….” (emphasis added)).

Just as recounts are permissible without an exception expressly stated in the

ballot storage requirement, so, too, are CORA inspections permissible without an

expressly stated exception for CORA. The Plaintiff accordingly asks the Court to

reconsider and reverse its holding that Section 31-10-616(1), C.R.S., prohibits

CORA inspection of the TIFF files.

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ii. Construing the storage requirement to prohibit CORA inspections would lead to the nonsensical result that Title 1 ballots may be inspected while Title 31 ballots may not.

When a court construes a statute, it “should not be read in isolation but

together with all other statutes relating to the same subject or having the same

general purpose, to the end that the legislature's intent may be ascertained and

absurd consequences avoided.” Vickery v. Vickery, --- P.3d ---, 2010 WL 963204

(Colo. App. 2010). Title 1, which controls statewide and federal elections, requires

ballots and election records to be preserved just as Title 31 does, but with one

important difference: Title 1 includes no requirement that ballots must be kept in

the ballot box beyond the period allowed for election contests. See §§ 1-7-801 to -

802, C.R.S. After the period for contests has passed, Title 1 directs that election

officials “shall remove the ballots from the ballot box” and preserve them “as

election records.” See § 1-7-801, C.R.S. (emphasis added).

The absence from Title 1’s records maintenance statute of the very

requirement on which so much hinges in this case shows the absurdity of

construing the storage requirement in Title 31 to be an exception to CORA. Since

Title 1 requires ballots to be removed from the ballot box after the contest period

ends, a victory for the Clerk based on the municipal ballot storage requirement will

mean that inspections of federal and statewide election ballots are allowed (after

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the contest period), while inspections of municipal election ballots remain

forbidden. Vickery weighs against a construction that produces this inexplicable

discrepancy, particularly in the absence of any indication on the face of Section 31-

10-616(1), C.R.S., that this outcome is the intent of the statute.

***

In dismissing Marks’s Complaint, the district court adopted a loose

construction of the term “ballots” side by side with a strict, effectively literal

construction of the requirement for ballots to “remain in the ballot box.” Such an

inconsistent approach to the construction of two material terms within the scope of

a single statutory sentence is misplaced and should be reconsidered in favor of

applying a substantial compliance standard to the ballot storage requirement.

The requirement for ballots to remain in the ballot box after an election, if

construed narrowly and with a view only to obtaining substantial compliance, falls

well short of constituting an exception to CORA that is specifically provided by

law. Thus the district court erred when it dismissed Marks’s Complaint on the

grounds that the ballot storage requirement of Section 31-10-616(1), C.R.S.,

provides a specific exception to the public’s right to inspect voted municipal

ballots and copies of those ballots under CORA.

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V. CONCLUSION

WHEREFORE, Plaintiff Marilyn Marks respectfully requests this Court to

REVERSE the Order of the district court dismissing Ms. Marks’s Complaint.

VI. REQUEST FOR ATTORNEY FEES

Plaintiff Marks respectfully requests this Court to award her reasonable

attorney fees pursuant to C.A.R. 39.5 and Section 24-72-204(5), C.R.S. (“Unless

the court finds that the denial of the right of inspection was proper, it … shall

award court costs and reasonable attorney fees to the prevailing applicant….”).

Respectfully submitted this 19th day of October, 2010.

ROBERT A. MCGUIRE, ATTORNEY AT LAW, LLC By: S/ Robert A. McGuire

Robert A. McGuire, Reg. No. 37134 1624 Market Street, Suite 202 Denver, Colorado 80202 Phone: (303) 734-7175 Fax: (303) 734-7166 Email: ram@lawram.com Attorney for Plaintiff-Appellant Marilyn Marks

A PRINTED OR PRINTABLE COPY OF THIS E-FILED

DOCUMENT WITH ORIGINAL OR SCANNED SIGNATURES IS

MAINTAINED BY COUNSEL FOR THE FILING PARTY AS

REQUIRED BY C.A.R. 30(F)

CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of October, 2010, I served a true and correct copy of the foregoing OPENING BRIEF, and the ADDENDUM TO OPENING BRIEF, by the method indicated below to each of the following: Person Served: Address:

Method of Service:

John Worcester Counsel for Appellee

City Attorney City of Aspen, Colorado 130 S Galena Aspen, Colorado 81611

LexisNexis File & Serve.

James R. True Counsel for Appellee

Special Counsel City of Aspen, Colorado 130 S Galena Aspen, Colorado 81611

LexisNexis File & Serve.

S/ Robert A. McGuire