Colorado SOS Advice to Counties regarding CORA request for voted ballots

The following is an email written by Harvie Branscomb to Jeff Roberts of the Colorado Freedom of Information Coalition on July 11 2016

This is partly why there is long lasting conflict  between election officials and public that is far more significant than partisan differences. This email is wrong at several levels. The Secretary's office is back on the wrong side of transparency once again.

1) Thus SOS advice comes out late and long after my first request on June 16. It is so late that it can't be argued against in time to benefit from positive correction and as a result to have the effect intended by the statute.

2) The Dept. of State had no authority over CORA and has declined to facilitate my requests under CORA for that reason. They have no basis for interpreting CORA for other custodians.

3) The legislative intention of having two forks of stay periods is twofold: 1) to avoid interference with county election processes assuming the CORA fulfillment of ballots to be time consuming. 2) to allow campaigns and citizens to gain knowledge about their election in time to inform their decision to recall or contest an election. An interpretation that bridges these two periods eliminates the intended benefit. The law is in CRS 24-72-205.5.

Any suggestions as to how to wage this important battle with the Dept. of State would be helpful.
From: Dwight Shellman
 Sent: Thursday, July 07, 2016 3:44 PM
 To:[clerks and staff of UVS counties and SOS staff]

Subject: FW: CORA email

I am forwarding the following email from Troy Bratton regarding Harvie Branscomb’s recent CORA requests to the Clerks and Recorders and election deputies of the counties that utilized Dominion’s Democracy Suite 4.21 voting system during the 2016 Primary Election.  Please feel free to forward this to your county attorneys and others in your offices, as you deem appropriate.  This message will be distributed to all counties in tomorrow’s Week in Brief, in the event they also received similar CORA requests.

Please contact Troy directly if you have any questions.

Thank you,

Dwight Shellman
 County Support Manager| ACP Voter Registration Coordinator
 Elections Division | Colorado Department of State
 1700 Broadway | Suite 200 | Denver | CO | 80290
 Phone 303-894-2200 x6313 | Mobile 303-917-3245| Fax 303-869-4861

CONFIDENTIALITY NOTICE: This message may contain confidential information and is intended only for the individual(s) named. Pursuant to the Address Confidentiality Program Act, section 24‑30‑2108(10), C.R.S., this message shall not be a public record subject to inspection pursuant to the provisions of part 2 of article 72 of title 24, C.R.S. (CORA). If you are not an intended recipient you are not authorized to disseminate, distribute or copy this e-mail. Please notify the sender immediately if you have received this e-mail by mistake and delete this e-mail from your system.
From: Troy Bratton
 Sent: Thursday, July 07, 2016 2:35 PM
 To: Dwight Shellman
 Subject: CORA email


Last month, several of you received an email from Harvie Branscomb that contained advanced notice of a CORA request for ballots and some questions that he wanted you to answer. Some of you have asked that we provide some guidance because the email was sent to multiple counties. We wanted to be responsive to your request so please find some basic guidance below. But please remember: you are the custodian of the records, not the Secretary of State. As such, please consult with your county attorneys before responding the email request.

Responding to Questions:

You are under no legal obligation to respond to requests to answer questions or provide explanations. As you know, CORA governs the request for public documents and makes no mention of any duty to respond to questions. If you want to respond to questions or other requests for information that’s fine, just understand that you have no duty to do so.

Similarly, under CORA, you have no duty to create a record, which is essentially what you’d be doing if you choose to answer his questions. Once you create the record, you do have an obligation to provide the document upon request.

The Advance Notice of a CORA Request

The email also contained an “advance notice of a CORA request for electronic copies of cast vote record reports and digital ballot scans.” As you know, the release of those records is governed by section 24-72-205.5, C.R.S. Paragraph (3) (a) of that section states that a DEO shall not fulfill a request for those records during the period that begins 45 days before election day and ends on the date the DEO is required to certify the official abstract of votes cast or when a recount is completed, whichever is later.

For the most recent primary election, the deadline to certify the abstract is July 11. But under statute, an interested party has until July 19 to request a recount. Because section 24-72-205.5 prohibits you from releasing digital ballot scans and cast vote records until a recount is completed, we advise you to not release the records until you are certain that no interested party will request a recount. So, in this instance that date would be July 20.

Again, please accept this as general guidance. You should discuss your specific response to the email with your county attorneys.

 Troy Bratton
 Legal and Policy Manager
 Colorado Secretary of State’s Office
 1700 Broadway, Suite 200
 Denver, Colorado 80290
 (303) 869-4904