An URGENT Email from Marilyn Marks, Colorado Election Integrity
activist, to election officials at the Colorado Seceretary of State.

Hilary [Rudy] and Suzanne [Staiert],

Apologies in advance for the length of this memo. It appears from the
many conversations and memos to date, the urgent canvass board issue
is not being reasonably addressed or understood by the Department of
State officials.  This is an attempt to use specific instances to
illustrate the point. I ask that you address this topic as soon as
possible, but not later than first thing on Monday morning, given the
canvass board work going on across the state this weekend.

Below and attached are some excerpted notes I have written as an
election quality activist, (certainly without having the credentials
of an attorney), to friends on the Boulder Canvass Board. Those
following comments should be read in that context.  However, I first
want to take the opportunity to object to the position of your office
on Friday in failing to issue a rule to insist that canvass board
members are public officials of public boards and to be protected by
their counties from personal financial exposure to legal defense costs
as it relates to their role on the canvass boards of their counties.

Please stop to consider, if the canvass board, --a creature of
Colorado statute formally constituted by compliance with statute, with
duties to create and certify the abstract of results of the election
as a basis for who is to take office—is not a local public body—what
are they? The cannot possibly be reasonably said  to be private
citizens vested with this very significant authority to determine the
winners of the election and to certify the result  and have no
discipline on their activities by the Sunshine laws, Open Records
laws, record retention laws, etc. that bind public officials.? That
would indeed be a dangerous position.  The analysis need go no
further. If these are private citizens without any official position,
how can they be charged with this important responsibility? If they
need legal advice, who will give it to a “private citizen” group? The
county attorney cannot provide legal advice to private citizen groups.

Hilary stated that the SOS rule was not issued Friday as planned as
the Department’s view is that this attached memo suffices for the
short term as you concur with Boulder that the canvass board is not
the proper party of a legal action in an election controversy or Open
Records or Open Meetings law issues. While there is plenty of reason
to disagree as to who the “proper party” is for a legal action, no one
can assure that only a “proper party” will be sued and how much money
a successful defense will cost.  The memo and your position merely
serve to have the board member beware that there is no realistic
financial protection if they must defend themselves.

Additionally Hilary stated to me yesterday  that she feels that these
issues are better dealt with AFTER this election gets certified and in
conjunction with future elections. Such a view seems to ignore the
serious subject at hand---the immediate need for the good faith
actions and decisions of canvass board members to be protected if
challenged during the certification and potential recounts of the 2012
election.  Today almost every member of the canvass board in Boulder
was at the clerk’s office in shifts to perform their duties  to
conduct the post-election audit. They were making decisions on batches
of ballots to audit, whether the counts reconciled, whether they were
properly hand counted and tested, and whether the SOS rules are
complied with for the audit. If later there is an allegation of an
error on their parts, who defends them against legal action? This
question is not one to be postponed until next year.

Hillary [Hall, Boulder County Clerk] stated that the duties of the
board are "quite limited" and would serve to protect them from
liability or being the proper party to sue. I can’t see how this is
true. Recall that the canvass board, NOT the clerk,  actually
*conducts* a recount.  If a recount proves unsatisfactory to a
candidate, he may petition the court under 1-10.5-109  (Challenge of
Recount) to require that the SOS conduct the recount instead. Even
then, the canvass board would presumably need to be heard in court in
that case, and their interests may be adverse to the clerks’ interest.
Who will give them appropriate legal counsel? )

Also, in a recount, with the canvass board having direct
responsibility for conducting the recount, a disgruntled candidate,
party or governing board with an issue on the ballot could certainly
file a suit with allegations of “violation of duty”  against these
citizen election officials under 1-1-113.

Boulder is simply being purposely and needlessly blind to the obvious
intent of the law to have the citizen canvass board provide checks and
balances on the  election process and the role of the clerk. The
attached memo takes the unsustainable position that the election
belongs to the clerk, not the people. And that the clerk uses the
canvass board for some ministerial tasks she requires. No responsible
reading of Title 1 could reach this conclusion. If so, a clerk would
be ultimately in charge of her own re-election and any recount of that
election. She would be, without proper checks and balances, in charge
of the elections of the County Commissioners who set her budget. It is
obvious that the law intended  the canvass board to be the ultimate
local authority for their elections. Such authority requires structure
that the other statutes require of public officials.

Furthermore, there is no compelling public policy interest served in
declaring the board to be private citizens acting in their own
capacity to take official action in private out of public site. The
position of Boulder County is irrational and suspect given the fact
that acknowledging the canvass board as a local public body is the
perfectly logical and no-risk decision.

Please recall that one issue  currently pending in court is whether
certain recount decisions by the Douglas County CB are to be reversed
by the court due to Sunshine Law violations by the board members. It
is not difficult to see legal controversies arising from the Boulder
County CB decisions if made in private, outside of public meetings.

Also please note that the City of Aspen made (informal) criminal
allegations against the City of Aspen Election Commission (volunteer
board) for one lunch meeting between the two bi-partisan members that
was not properly noticed as a public meeting, and the fact that one
member did not personally save copies of all emails related to
elections, although her co-commissioner did preserve all emails to
have a complete commission record.  The commissioner had to spend
several thousand dollars in legal fees to stop the City from pursuing
their unfounded retaliatory claims. The commissioners resigned and
were appointed with two new commissioners who ultimately experienced
the same kind of accusations and treatment from the City and were
forced to raise private funds to seek legal counsel as volunteer
election commissioners charged with the same duties as a Title 1
canvass board. If the City of Aspen believes that an Election
Commission is a public body, and all volunteer commissions are
considered as such in Aspen, it is  logical to presume that the board
will be considered a public body by many citizens.

I urge you to immediately issue a rule to require that canvass board
activities be handled as public meetings and subject to all Sunshine
and CORA laws. If an opinion from the AG’s office is required to
confirm that the political subdivision protect members from personal
financial liability as a result of their good faith duties on the
canvass board, please ask that it be issued immediately, given the
short time schedules of the certification process.

Please see the examples I give below as to why I do not agree with the
analysis by Boulder or the Department that canvass boards need no
specific legal protection with respect to the very important decisions
they make.

Thank you for your attention to this.  [Marilyn Marks}