Al Kolwicz
2867 Tincup Circle
Boulder, CO 80305
303-494-1540
AlKolwicz@qwest.net
www.AlKolwicz.net
March 25, 2007
Mr. James A. Windholz, P.C.
Windholz & Associates
1650 38th Street
Suite 103 West
Boulder, Colorado 80301
RE: Mrs. Norback Open Records Request
March 15, 2007
Dear Mr. Windholz:
We are in receipt of
your letter dated March 23, 2007. I am confused by some of your responses, and I disagree with your conclusion that CORA prohibits disclosure of the pollbook/ballot tracking log and names of people who were mailed a ballot. I have copied each paragraph of your letter and responded below.
A.
I cannot find C.R.S. 24-10-701 in my copy of the statutes. Do you mean 24-10-201?
B.
Please explain why you cite the "Colorado Governmental Immunity Act". Are you suggesting that the City may, for some related reason, invoke immunity under C.R.S. 24-10-101?
The Colorado Municipal Election Code of 1965 is found at C.R.S. 31-10, and is established as the controlling law in Lafayette by:
C. R. S. 31-2-211. Elections - general.
(1) Except as otherwise specifically provided, all elections held pursuant to this part 2 shall be conducted as nearly as practicable in conformity with the provisions of the "Colorado Municipal Election Code of 1965".
Lafayette Code. Sec. 40-1. Compliance with state law.
(a) The City of Lafayette hereby adopts the Uniform Election Code of 1992 for the purpose of participating in all coordinated elections and the Colorado Municipal Election Code of 1965 for the purpose of participating in all non-coordinated elections, except that, unless otherwise provided by ordinance, the person or persons requesting a recount shall bear the cost of such recount.
Nowhere do I find that the City exercised its option to adopt the “Uniform Election Code of 1992” as authorized under:
C.R.S. 31-10-102.7. Applicability of the "Uniform Election Code of 1992".
Any municipality may provide by ordinance or resolution that it will utilize the requirements and procedures of the "Uniform Election Code of 1992", articles 1 to 13 of title 1, C.R.S., in lieu of this article, with respect to any election.
Further, nowhere do I find defined or specified a “special mail ballot election”.
Nor do I find in any code authorization for conducting a non-coordinated election by mail ballot. C.R.S. 31-10-108 would permit a special election to be “… conducted at the same time as a mail ballot election pursuant to article 7.5 of title 1, C.R.S.”.
But, there was no mail ballot election underway at the time of the special election, so this does not apply. And, even if there were such a mail ballot election underway the election would have been governed by C.R.S. 1-7.5. It was not. Among other things, C.R.S. 1-7.5-104 requires:
C.R.S. 1-7.5-104. Mail ballot elections - optional.
(1) If the governing board of any political subdivision determines that an election shall be by mail ballot, the designated election official for the political subdivision shall conduct any election for the political subdivision by mail ballot under the supervision of the secretary of state and shall be subject to rules which shall be promulgated by the secretary of state.
To our understanding, the election was not conducted, “under the supervision of the secretary of state”. Nor was the election conducted according to C.R.S. 1-7.5.
In either case, it is required by C.R.S. 31-10-108 that, “Special elections shall be conducted as nearly as practicable in the same manner as regular elections.”
I do not find that the election was a legal election. Please more completely cite the authority used by the City to conduct a non-coordinated, unsupervised, special election by mail ballot.
C.
Perhaps there is some confusion. My letter makes no reference to an election contest. Mrs. Norback’s letter is a valid request to access records under the Colorado Open Records Act C.R.S. 24-72.
D.
I recommend that you and I confer with the Secretary of State to determine if your above interpretations are correct. I believe that they are not. If your interpretations are correct, it would be impossible for the public to utilize sections of the law, such as:
C.R.S. 1-9-101. Challenge of illegal or fraudulent registration.
(1)(a) Any registered elector may, by written challenge, protest against the registration of any person whose name appears in a county registration record.
C.R.S. 31-10-1102. Right to vote may be challenged.
(2) It is the duty of any judge of election to challenge any person offering to vote who he believes is not a registered elector. In addition, challenges may be made by watchers or any registered elector of the precinct who is present.
If your interpretations are correct, every jurisdiction in Colorado would be in violation. I have personally accessed such records in at least the following Colorado counties: Adams, Boulder, Clear Creek, El Paso, Gilpin, Grand, Jefferson, Summit, and Mesa.
E.
Repeating what I said in
my letter of March 20, “… to my knowledge, there is no disclosure exclusion granted to the poll book/ballot tracking log and names of people who were mailed a ballot.”
As an aside, if, as you suggest, the ballots are marked in any way whereby the ballot can be identified as the ballot of the person casting it, the ballots are in violation of Article VII Section 8 of the Colorado Constitution.
F.
I believe you are misinformed. In the first place, is it your understanding that election judges announced the names of the voters? Our poll watchers did not report that this was done. Is it your understanding that poll watchers were permitted to witness the content of all documents and equipment used to conduct the election? Our poll watchers did not report that this was done.
In the second place, please reread my letter of March 20, and my statement in “E” above, “… to my knowledge, there is no disclosure exclusion granted to the poll book/ballot tracking log and names of people who were mailed a ballot.” If you know of such exclusion, please identify it.
G.
To reiterate from “C” above, “Perhaps there is some confusion. My letter does not refer to an election contest. Mrs. Norback’s letter is a valid request to access records under the Colorado Open Records Act C.R.S. 24-72.”
H.
“… we understand that the returned ballot envelopes containing valid signatures can be withheld from inspection under the section sited by your attorney. My version of 24-72-204(8)(a) is copied below.
“Do you interpret this section to deny poll watchers access to this information?
“It is possible that a portion of Ms. Norback’s request for access to the return envelopes can be fulfilled without access to the actual return envelopes. We would like to discuss with you some alternate means including detail documentation regarding the authority and procedures used to conduct of the election itself. We are concerned about (1) reports that at least one ballot was counted that was not voted by the eligible elector, (2) confusion regarding the actual authority of the City to conduct an unsupervised Mail Ballot Election, and (3) poll watcher reports that signatures on the return envelopes were not verified.”
Any further delay in the production of records and answers to these questions can be injurious to my client.
When may we inspect the poll book/ballot tracking log and names of people who were mailed a ballot?
Sincerely,
Al Kolwicz cc: Karen Norback
2867 Tincup Circle 800 E. Geneseo St
Boulder, CO 80305 Lafayette, Co. 80026