March 20, 2007
Susan Koster, CMC
City Clerk
City of Lafayette
1290 S. Public Road
Lafayette, CO 80026
(303) 665-5588 ext. 3313
susank@cityoflafayette.com Fax: (303) 665-2153
Dear Ms. Koster:
Ms. Norback has retained my services to represent her interests in the February 27, 2007 Special Election. I am a recognized elections expert and have served as an Expert Witness in Colorado Courts.
At your convenience, I am happy to speak with you by phone and/or to meet with you in person.
The first topic of interest is your e-mail to Ms. Norback dated March 19, 2007. In the e-mail, you report that the City Attorney has advised you to deny Ms. Norback’s request for records, dated March 15, 2007. The reasons given are:
1. “… ballots and all other election records and forms are to be kept and preserved in the custody of the election official. (CRS 31-10-616)”
2. “… election official is prohibited from allowing inspection of any election records which permit the identification of a particular person. (CRS 24-72-204 (8)(a)”
In the first place, your attorney’s interpretation of the statute disagrees with my own. My version of 31-10-616 is copied below.
I believe that the statute intends to define (1) protections to be accorded to ballots and when ballots may be accessed, and (2) requirements to preserve all election records.
Ms. Norback’s Open Records request does not ask for access to the ballots, but does ask that you make certain election records available for inspection:
A. The poll book/ballot tracking log for the Lowe’s/ Waneka annexation election
B. The ballot envelopes from the Lowe’s Waneka annexation election
C. The file or document listing the names of people who were mailed a ballot for the Lowe’s Waneka annexation
Secondly, 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.
In closing, 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. Assuming that you concur, when may we inspect these records?
I am available to speak or meet with you at any time. I am confident that we have the same objective, an election that can be trusted.
Al Kolwicz
2867 Tincup Circle
Boulder, CO 80305
cc: Karen Norback
800 E. Geneseo St
Lafayette, Co. 80026
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.
Source: L. 75: Entire title R&RE, p. 1053, § 1, effective July 1. L. 79: (1) amended, p. 1179, § 21, effective July 1. L. 96: (1) amended, p. 1543, § 135, effective June 1.
24-72-204. Allowance or denial of inspection - grounds - procedure - appeal - definitions.
(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 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.
(b) Nothing in paragraph (a) of this subsection (8) shall be construed to prohibit a designated election official from:
(I) Making such election records available to any law enforcement agency or district attorney of this state in connection with the investigation or prosecution of an election offense specified in article 13 of title 1, C.R.S.;
(II) Making such election records available to employees of or election judges appointed by the designated election official as necessary for those employees or election judges to carry out the duties and responsibilities connected with the conduct of any election; and
(III) Preparing a registration list and making the list available for distribution or sale to or inspection by any person.
(c) For purposes of this subsection (8):
(I) "Designated election official" shall have the same meaning as set forth in section 1-1-104 (8), C.R.S.
(II) "Election records" shall have the same meaning as set forth in section 1-1-104 (11), C.R.S., and shall include a voter registration application.
(III) "Identification" shall have the same meaning as set forth in section 1-1-104 (19.5), C.R.S.
(IV) "Registration list" shall have the same meaning as set forth in section 1-1-104 (37), C.R.S.