Colorado War Game – Factual Overview

ELECTION LAW WAR GAME
September 11, 2012
Judicial Conference of Colorado
Vail, CO

Download the Colorado Factual Overview

FACTUAL OVERVIEW¹

A recent amendment to Colorado Open Records Act (CORA) grants access to voted ballots to members of the public after the canvass period ends. The statute denies access during the pendency of a recount. This war game posits a scenario the statute's crafters may not have contemplated: what if a CORA request is made just before a recount petition is filed? Should CORA access be granted or denied?

In recent years, concerned citizens in Colorado have brought a number of suits on the question of public access to voted ballots. In June 2012, the Colorado legislature enacted a statute, CRS 24-72-205.5, affirming ballot transparency. The statute grants public (i.e., non candidate) access to voted ballots, except during the canvass or during a recount.² Colorado election law sets the canvass period from Election Day until 17 days after the election, or November 23rd.³ Assuming no automatic recount is triggered, candidates have until 31 days after the election to file a recount, or until Friday, December 7.⁴ On that basis, imagine this:

Ed Perlmutter, a Democrat, led his opponent Republican Joe Coors, Jr. in the U.S. Congressional race in Colorado's Seventh District. After the initial count, Perlmutter led Coors by 1,268 votes or .9 percent.⁵ This spread was not enough to trigger an automatic recount, which requires a difference of one half of a percent or less. An unprecedented number of close races across the country have stretched national party resources, and Mr. Coors remained on the fence about whether to file a recount petition; in Colorado, the cost of a recount falls to the candidate requesting it.⁶

On November 26, the Monday following the close of the canvass period, a local Colorado activists group, "Democracy In Action" ("DIA"), filed a CORA request under CRS 24-72-205.5(3)(a) requesting copies of all ballots cast in the 7th Congressional District (consisting of portions of Adams and Jefferson Counties). Election officials in Adams County agreed to provide copies of ballot images (TIFFs) of all votes cast, including images of mail-in ballots. Election officials in Jefferson County refused access despite what appears clear statutory mandate to do so.

DIA members, working in shifts, sifted through the Adams ballot images over the next several days. Upon finishing their review, DIA posted an account of possible mistaken vote tallies in Colorado's 7th District on its blog CODemocracyInAction.org at 11:00 pm on December 4. The national news media immediately picked up the story. Throughout the following morning, December 5, national media outlets rushed to court to file their own CORA requests in Adams, and Jefferson Counties. Once again, Adams County agreed to provide access and Jefferson County refused access. Encouraged, Mr. Coors filed a recount petition at 4:30 pm on December 7, the last day he was eligible to do so.

In response to the Jefferson County Clerk's decision to deny access to the ballots, the national media outlets and Mr. Coors filed a civil claim under CORA, requesting that the Jefferson County district court order the Jefferson County Clerk to grant access to the ballots. The court dismissed the case and refused to grant the requested access until the recount is complete.

In the case being argued today, the national media outlets and Mr. Coors have appealed the district court's judgment and request CORA access to copies of the ballots and ballot images. Mr. Coors, anxious for as much help as possible in locating irregularities in the certified totals, argues that the statute is clear on its face that access should be awarded to any member of the public who requests access post canvass, pre recount. Mr. Perlmutter supports the Jefferson County Clerk's decision to deny access, arguing that the CORA request cannot now be honored because the recount phase officially began on December 7 when Mr. Coors filed his petition. Further, Perlmutter asserts that allowing unfettered national media access to ballots will create a circus atmosphere that could corrupt the recount process.

At today's hearing, the three-judge panel will hear attorneys for Mr. Perlmutter and Mr. Coors argue the case. For purposes of this scenario, attorneys for both the national media outlets and the Jefferson County clerk's office appear to have vanished in a thin mist.