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Mayor Hopeful Can Mine Ballots for Miscount

(CN) - A failed candidate for mayor of Aspen, Colo., is entitled to see digital copies of the ballots as long as the voters remain anonymous, the state appeals court ruled.

After Marilyn Marks lost her bid for mayor, she asked city clerk Kathryn Koch to see the computer-generated copies of the ballots.

Aspen had installed a balloting system in which voters ranked the candidates on the ballot rather than voting for a single candidate.

As conceived, the system would prevent a lengthy runoff election by using the rankings to simulate the runoff.

But Marks claimed that Koch concealed a discrepancy between the paper and computer ballots, waiting until after the deadline to challenge the election results had passed before disclosing the problem.

This discrepancy, Marks alleged, led to more votes for her opponent.

Koch refused to disclose the documents, citing the state constitution's secrecy-in-voting requirement, as well as the election code's requirement for the clerk to hold the ballots for six months and then to destroy them.

A Pitkin County judge ruled in favor of Koch, but the Colorado Court of Appeals reversed on Sept. 29.

"The phrase 'secrecy in voting,' when read in conjunction with the clauses described above, protects from public disclosure the identity of an individual voter and any content of the voter's ballot that could identify the voter," Judge David Furman wrote for the ourt.

"The content of the ballot is not protected, however, when the identity of the voter cannot be discerned from the face of that ballot," he added.

On remand, the county court will order Koch to release the computerized ballot copies, with the exception of those that contain write-in votes.

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