Election integrity advocates are under attack by the Broomfield government – Mary Eberly

December 20, 2013 at 1:55 pm

Marry Eberle has been an election integrity advocate for  at least the 10 years I have known her.  In order to silence her the Broomfield government has taken her to court to prevent her from getting public documents.  This is her letter to the Broomfield government:

Dear Mayor Ahrens, Members of the City Council, Attorney Tuthill, Canvass Board Member Joan Stern-Murahata, and Canvass Board Member Marty Robinson, and Clerk and Recorder Candelarie,

On Wednesday, December 18, 2013, I was shocked to discover that the City of Broomfield took legal action to hale me into court to litigate a request I made for public documents under the provisions of the Colorado Open Records Act (CORA). I hereby request that you terminate my CORA request of December 15, 2013, and that you remove me from the filed Application for Immediate Review of Public Records Request Pursuant to Section 24-72-204(6) C.R.S.

Since 2002 I have worked thousands of hours as a volunteer on projects and legislation concerning election transparency and integrity. In the past three years, I have observed lawsuits such as Broomfield’s current Application for Immediate Review brought against private citizens who are merely seeking access to documents that are public records as defined by CORA.

Such CORA-review lawsuits, initiated by the custodian as “safe-harbor” actions, much like Broomfield’s, have dragged on for years, and the average legal cost to the citizen making the document request is between $50,000 and $75,000. My husband and I are largely retired and are not in a position to add such an expense to our household budget merely to get basic public information. It is a shame that open government as provided by CORA is only truly open to those with extensive financial means, and surely this outcome was not the legislature’s intention when they passed our Sunshine Laws.

I requested five groups of documents. They are related to the November 2013 election and therefore would not have been in “deep storage” and difficult or time-consuming for the clerk to produce for me to inspect.

The documents I requested could only be public documents, so for the Broomfield clerk to ask the District Court for review of my request is pure harassment from the City. Such harassment is being funded by taxpayers, many or most of whom would no doubt disapprove of this Council’s action. The first group of documents I requested was for the original ballot envelopes that were undeliverable and were returned to the clerk by the U.S. Postal Service with forwarding addresses affixed. These unopened envelopes have been through the U.S. Mail. How could such envelopes be anything other than public documents? I have inspected hundreds of such returned undeliverable envelopes, and in fact I have copies of examples from a previous election that I obtained under the provisions of CORA.

As for the clerk’s claims of “voter-privacy” concerns, I am well aware of the particular Open Records statutes concerning ballot inspection because I lobbied extensively at the Capitol for changes in HB12-1036 that spelled out specific procedures for voted-ballot inspection. The statutes list very specific procedures to protect the physical condition of the ballots and any rare, but potential voter-privacy concerns. Clerk Candelarie does not need the guidance of the District Court on this topic. The very specific procedures are spelled out in the Open Records statutes enacted as recently as June 2012.

The clerk could have engaged me in a discussion about his concerns for voter secrecy and ballot anonymity before filing the Application for Immediate Review. Of course, I did not request to handle the ballots (the subject of my third request item); only election officials can handle voted ballots. For those few ballots that might suggest voter identity as I inspected them, the ballot style designation or any other identifying feature could have been covered as provided for in CORA. The particular CORA statute, C.R.S. 24-72-205.5(4)(b)(II), requires the production of the ballot and the custodian’s then covering any markings including the style designation “that may identify the particular elector who cast the ballot before the ballot may be made available for public inspection.” As a long-time worker promoting election integrity and as a citizen who supports an elector’s secrecy in voting as provided for in the Colorado Constitution, Article VII, Section 8, I would never want to know how a particular voter voted, nor would I want Broomfield or any other jurisdiction to keep records that might under any circumstances reveal to election officials how individual voters vote.

The false claims of requiring District Court direction to determine whether to produce these records will ring hollow to all legislators involved in the CORA bill, the press, those interested in election and government transparency, and all election officials. It is clear that the goal is harassment of a specific citizen, intimidation to keep other citizens from asking for election documents, and concealing of important public documents from Broomfield’s recent election, as there is no uncertainty about the public nature of their contents.

The clerk is wielding his taxpayer-supported advantage over a regular citizen here. I hope you will instruct the clerk to remove me from the Application for Immediate Review, and as noted, I withdraw my December 15, 2013, request for the records. Among others copied here, I am especially copying Representative Joseph A. Salazar because of his interest in improvements to CORA to enhance citizen access.

Thank you for your attention to this request.


Mary C. Eberle
1520 Cress Court
Boulder, CO 80304
303 442-2164

CC: Representative Joseph Salazar
Senator Rollie Heath
Richard Valenty
Senator Vicki Marble
Senator Kevin Grantham
Members of the Press
Members of the Election Integrity Community

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