Threat of gag order could silence talk about ballot secrecy case

The Colorado Statesman

A federal judge considering a ballot secrecy case put forth by the Aspen-based Citizen Center said on July 2 that he is considering a gag order, and then issued another warning to all litigants against trying the case in the press.

Magistrate Judge Michael J. Watanabe, who is hearing the case in U.S. District Court, issued the admonishment after Citizen Center’s founder Marilyn Marks’ comments were published in a June 15 Colorado Statesman article.

Marks is suing the clerks of Mesa, Larimer, Jefferson, Boulder, Chaffee and Eagle counties in federal court, alleging that the clerks are not guaranteeing ballot secrecy.

According to the Salida-based newspaper The Mountain Mail, Watanabe told litigants in the case, “If I start seeing this case tried in the press, there will be [a gag order] issued.”

Attorneys for the clerks brought the June 15 Statesman article to the judge’s attention in a response to an emergency motion submitted by the Citizen Center. The motion asks the judge to reverse a June 4 order that it refrain from submitting any open records requests to any of the defendants during discovery of the case.

For Marks and her members, the order is problematic as many of the Citizen Center’s members work closely with campaigns and other public issues in which being able to make Colorado Open Records Act, or CORA requests, through the secretary of state’s office and county clerks is crucial.

Marks and her attorney filed an emergency motion for reconsideration, arguing that the order is onerous and burdensome, as well as a restriction on open government laws. But in their response, attorneys for the county clerks argued that Marks is overstating the scope of the judge’s ruling.

“Defendants never requested that Plaintiff or its members be prohibited from doing their advocacy work,” attorneys for the clerks responded to the emergency motion. “All that Defendants requested, and all that this Court ordered, was that Plaintiff be prohibited from using CORA to avoid the discovery limitations in this case. Plaintiff fails to explain why it cannot use discovery to obtain the information it needs in this case, and it cannot establish the harm that may result from the ruling by adopting an unreasonably broad interpretation of the ruling. Plaintiff fails to demonstrate any abuse of discretion in this ruling, and as a result the Motion should be denied.”

The judge is expected to rule on Citizen Center’s motion for reconsideration on July 13. In the meantime, Marks does not understand why the clerks are pushing for the prohibition of using CORA during the discovery process.

“We do not understand the basis for this request by the defendants,” said Marks. “There is no basis for curtailing our members’ statutory rights to access public records when Citizen Center sues the government.”

Statesman article used as evidence

In their response to Citizen Center’s emergency motion, attorneys for the clerks offered the June 15 Statesman article as evidence of overstating the scope of the judge’s order.

In the article, Marks argues that members would need to decide between continuing their public advocacy work and risk being held in contempt of court, or resign from the organization.

But attorneys for the clerks believe that Marks’ comments to The Statesman can be characterized as “misstatements” because there is no reason to believe that members of the Citizen Center would be forced to resign because of the judge’s order. They argue that suggesting so is an “exaggeration.”

Attorneys for the clerks also raise the issue of communicating with the media.

“Plaintiff’s communications with the media also appear to violate this Court’s admonishment that this case should not be tried in the press,” attorneys for the clerks write.

David Hughes, deputy Boulder County attorney, said Boulder County Clerk and Recorder Hillary Hall has not requested a gag order. Attorneys for the other clerks did not return a request by The Statesman for further comment.

For their part, state attorneys representing the secretary of state’s office said they have also made no attempt to have the judge issue a gag order.

“There is no rule that keeps Ms. Marks from speaking to media, and there has been no attempts to prohibit Ms. Marks from speaking with members of the press by this office,” said Carolyn Tyler, spokeswoman for the attorney general’s office.

Marks agrees that there is not currently an order prohibiting her from speaking with the press, but she is afraid that one might be ordered.

“It is perfectly needed that we be able to speak to [the media] about this case, and make sure that the public understands as much about it as possible,” said Marks. “I plan to continue to talk to the press unless the court orders me to do otherwise.”

Marks has not been shy about discussing the case with local media, despite the judge’s admonishments.

“I don’t really know what he means by trying the case in the press; we’re trying the case in the courtroom,” said Marks. “I think that this is clearly a fundamental issue of public policy that we’re talking about here; we’re talking about the fundamental tools of democracy.”

A long and winding legal journey

Marks and her Citizen Center, a non-profit dedicated to advocating for citizen’s rights, sued the county clerks, as well as Secretary of State Scott Gessler, over ballot secrecy, arguing that they are not guaranteeing that ballots cannot be traced to individual voters.

The case stems from a lawsuit filed by Marks against the City of Aspen after an unsuccessful run for mayor in 2009. Marks had requested that Aspen hand over images of voted ballots. Her request was denied and she sued, winning on the appellate level, with the court ruling last fall that images of the voted ballots should be open for public inspection.

The case was appealed to the Colorado Supreme Court. The high court on June 28 reversed its original decision, deferring to the appellate court and declining to take the case. As a result, it stands in Colorado that voted ballots are public records open to inspection.

Questions still remain, however, as to whether clerks in Colorado are able to guarantee ballot secrecy. In denying Marks’ request for images of voted ballots, Aspen said ballot anonymity could not be guaranteed. The city raised concerns that ballots could be traced to voters, which is why the city denied releasing the ballots to Marks, according to the lawsuit she filed.

Colorado law clearly states that ballots must remain anonymous — even to government officials — so Marks became concerned with ballot secrecy. The federal case she filed aims to shine a light on the issue, she said.

“As much publicity as there possibly can be is the healthy thing here,” said Marks. “Voters need to know that their ballots are traceable in most counties in Colorado… I can’t imagine why the clerks and the secretary and the court would feel differently.”

Peter@coloradostatesman.com