chaffee county election complaint 2012 primary
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Chaffee County Election Fraud Complaint 2012 primaryTRANSCRIPT
August 16, 2015 Office of the Attorney General Ralph L. Carr Colorado Judicial Center 1300 Broadway, 10th Floor Denver, Colorado 80203 (vial email and postal mail) [email protected] Election Offense Complaint in Accordance with CRS 1-13-101(2) Renewal of 2012 Complaint Filed Under Provisions of CRS 1-1-107(2)(b) Background This complaint concerns voted ballots in the 2012 Chaffee County primary election. I am in possession of electronic color scans of the paper ballots voted in the election, having received them in litigation discovery of an unrelated case. It is my understanding that the Attorney General’s office was also provided with a set of these electronic scans in conjunction with the Citizen Center v. Gessler et al case. The complaint regarding these facts and ballots was first reported to the Colorado Secretary of State on July 31, 2012. (Exhibit 1) Upon examination of the unusually marked ballots in August 2012, the Secretary’s office reported on February 1, 2013 that the matter would be best handled by a prosecuting attorney. The Secretary’s representative reported that they had referred the matter to the District Attorney who declined to investigate. The Secretary’s office stated that the matter would be referred to the Colorado Attorney General for investigation. (Exhibit 2) I attempted to learn the status of the complaint on May 11, 2014 by requesting correspondence related to the case and was not provided with any responsive correspondence, (Exhibit 3). I followed up again on May 15, 2014 to ascertain whether there was correspondence with the Attorney General’s office that had been withheld, and was informed that there was no correspondence. (Exhibit 4) During the attempt to settle the unrelated litigation, the issue of ballot retention and the Attorney General’s investigation was raised, and discussed with Jennifer Davis, Chaffee County Attorney. (Exhibit 5).
As of August 16, 2015, based on the representations of Chaffee County, I believe that the original paper ballots are preserved and available for inspection. The return ballot envelopes with voters’ signatures and video surveillance records required by Election Rules should also have been preserved under normal litigation preservation requirements. Evidence of Forgery As stated in the original complaint to the Secretary of State, a cursory review of the ballot scans reveals many (more than 150) ballots with markings that appear to have been made by different people at different times. In many cases, different inks were used to mark the same ballot. This is a suspicious and rare occurrence. It is my understanding through informal updates from Deputy Secretary of State Suzanne Staiert in 2013 that the Elections Division staff who reviewed the paper ballots in the Clerk’s office concluded the numerous different style ballot markings suggested that there was likelihood of forgery. Staiert reported to me that Division staff interviewed all election judges and staff and reviewed the video surveillance records and determined that the markings were not made after the envelopes were opened in the clerk’s office. There had been initial speculation that workers may have marked over voter markings to “clarify” voter intent for machine readability. Staiert reported that the Elections Division was satisfied such an activity did not occur, although such markings also would have been in violation of the election code. (A ballot that may not be machine-readable is required to be duplicated without altering the voter’s original ballot.) Other evidence available to support investigation The investigation should be facilitated by the availability of the traceability of ballots. Although improper, the ballots were permanently marked with machine readable barcodes that can be referenced back to the voter in the case of mail-in ballots. The voters of each suspiciously marked ballot can be contacted and interviewed. Additionally, the mail ballot envelopes contain a hand-signed affidavit, and in many cases a handwritten return address. Because the paper ballot can be connected to the envelope, there is an opportunity to compare inks the voter used. Election Rule 20.7.3 requires certain video surveillance monitoring during the election that may provide information on the unusual markings on the ballots. Presumably separate routine building security video recordings were secured and maintained for the initial investigation by Election Division staff.
Violation of Colorado statutes CRS 1-13-106 and 1-13-716 prohibit willful alteration of ballots. CRS 1-13-803 provides for punishment for mail ballot fraud. CRS 1-13-723 provides for action against election officials for violation of duties, including omitting to perform required duties. Closing Please undertake a prompt investigation of this complaint. If further information is required, please do not hesitate to contact me. An affidavit is attached to provide my sworn statement on key facts. Marilyn Marks 891 14th Street, #1916 Denver, CO 80202 970 404 2225 [email protected] cc: Wayne Williams, Secretary of State ([email protected]) Suzanne Staiert, Deputy Secretary of State ([email protected]) Lori Mitchell, Chaffee County Clerk ([email protected] Jennifer Davis, Chaffee County Attorney ([email protected])
County of Mecklenburg ) ) ss. State of North Carolina )
MARILYN R. MARKS (“Affiant”), being of lawful age and first duly sworn upon oath, deposes and states as follows: 1. I reside at 891 14th Street, Denver, Colorado 80202.
2. I have been a registered voter in the state of Colorado since 2002.
3. I am filing the attached complaint with the Attorney General of the State of Colorado under the provisions of CRS 1-13-101(2) alleging forged ballot markings on a material number of ballots voted in the Chaffee County 2012 Primary Election.
4. I originally filed the allegations and supporting details of this
complaint as a complaint with the office of the Colorado Secretary of State on July 31, 2012. (Exhibit 1)
5. I received a letter from the Secretary of State’s office on February 1, 2013 stating that their investigation found that the matter should be referred to prosecuting attorneys, and that it would be referred to the Colorado Attorney General. (Exhibit 2)
6. I have inquired with the Secretary of State’s office concerning the official status of the investigation and have been unable to learn what aspects of my complaint were referred to the Attorney General’s office, and the ultimate official disposition of the July 31, 2012 complaint. (Exhibits 3,4)
7. On behalf of Citizen Center in July 2012, I obtained possession of electronic color scans of all paper ballots for this election in connection with the discovery process in Citizen Ctr. v. Gessler, No. 12-CV-00370-CMA-MJW.
Marks Aff. Page 2
8. Upon inspection of the color scans of ballots, I noted that ballot markings appeared to be made in different inks and differing styles on the same ballot, creating my belief that a systemic and improper secondary marking of many ballots occurred after the voters had cast their ballots.
9. My primary contact at the Secretary of State’s office on this matter
was Deputy Secretary Suzanne Staiert.
10. Deputy Secretary Staiert told me informally that the review by the Secretary’s staff had concluded that no secondary marking occurred by election officials for any purpose, including the possibility that officials and staff may have re-marked ballots to “clarify” the voter marks.
11. I cannot name the potential forgers because the suspiciously marked ballots came to my attention after they were in the hands of election officials, and I have no means of investigating. 12. Chaffee County Attorney Jennifer Davis has represented to me that the paper ballots are preserved and under seal in the office of the Chaffee County Clerk & Recorder. (Exhibit 5)
13. I have extensive experience in observing the processing of paper
ballots, in my roles as an election judge and authorized watcher for many candidates and parties in many elections. I have personally observed at close distances at least 100,000 paper ballots being processed.
14. The occurrence of changing inks and voter style marks on a single ballot is very unusual in my experience, and creates the appearance of a material irregularity in my opinion.
Monday, August 17, 2015 at 10:21:55 AM Mountain Daylight Time
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Subject: FW: Complaint -‐-‐Chaffee County Ballot Irregulari8esDate: Monday, August 17, 2015 at 10:21:20 AM Mountain Daylight Time
From: Marilyn Marks
From: Marilyn Marks Sent: Tuesday, July 31, 2012 2:22 PMTo: Suzanne StaiertCc: [email protected]; Richard Coolidge <[email protected]> ([email protected]); [email protected]; [email protected]: Complaint --Chaffee County Ballot Irregularities Dear Deputy Secretary Staiert, Please see the attached complaint regarding apparent irregularities in the Chaffee County 2012 primary ballots. As we discussed, there is likely no legitimate explanation for the wide-spreadvarious blue and black markings on individual ballots. I request that the Department open an immediate investigation to ensure that the cause of this issue is not repeated in November. From this distance, it is impossible for me to know the cause of this irregularity. However, I would ask that the Department’s investigation consider these and other possibilities:
1. Election worker with access to ballots altered ballots to influence the election.2. Election workers illegally colored in “light marks” on ballots to purportedly assist in
machine-reading, (but illegally obscuring the voter intent.)3. Voters marked with blue and black pens in patterns to signal their ballots in a vote-selling
scheme.4. Color scanner settings created false reading of blue and black, when ink color was actually
one color. (inspection of originals will be required to determine. I am certain that that does not consider all of the possibilities that should be explored to investigate this issue. Please let me know what additional information I can provide to assist in your investigation of this complaint. I would appreciate knowing when you officially open your investigation. Thank you for your prompt attention to this concern.
Marilyn [email protected] 404 2225
001
Complaint regarding Chaffee County 2012 Primary Ballots
I am alleging a possible violation of the duty by election officials and potential forgery of ballots in the 2012 primary in Chaffee County. Without further investigation I cannot be more specific in the laws that appear to have been broken, nor can I make allegations as to who may have committed these violations. My complaint is based on voted ballots that appear to have been altered. Additional investigation by the Secretary is warranted.
In the course of reviewing color copies of Chaffee County 2012 voted ballots produced in discovery in the Citizen Center v. Gessler et al. case, I noted that scores of ballots appeared to be marked with a combination of blue and black ink in unusual ways. The coloring of the target areas on numerous ballots appears to be inconsistent within the ballots in question. It appears upon initial review that voting marks may have been made on the ballot after the voter cast the ballot.
It is hard to imagine any legitimate explanation for different colored voter marks on so many ballots.
Please open an investigation into the cause of these irregularly marked ballots.
The SOS office should have a CD of the ballots produced by Chaffee county. I have also uploaded the ballot copies to a dropbox which Deputy Secretary Staiert has access.
It should be noted that I have not personally observed any of the original ballots in question, only the color scans provided in discovery.
Please contact me as follows:
Marilyn R Marks 1520 Homestake Drive Aspen, CO 81611 970 404 2225 [email protected] I declare under penalty of perjury under the laws of the State of Colorado that the foregoing is true and correct.
Executed on July 31,2012, Aspen, CO
_____________________________________________________
002
Citizen Center/Chaffee 2159
003
Citizen Center/Chaffee 0679
004
Citizen Center/Chaffee 2069
005
Monday, August 17, 2015 at 9:27:44 AM Mountain Daylight Time
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Subject: RE: public records request-‐-‐-‐Chaffee 2012 primary ballot reviewDate: Thursday, May 15, 2014 at 3:31:33 PM Mountain Daylight Time
From: Andrew ColeTo: Marilyn Marks
Marilyn,AJached are the records responsive to your request, that we are able to release to you. We have withheldsome records, including ballot images, that may allow someone to determine how individuals voted. Asyou may remember, at the Mme of the elecMon, some counMes used serial numbers that were determinedlater to be unique and traceable to voters. Please let me know if you have any quesMons. Best,Andrew303-‐869-‐4908 From: Marilyn Marks [mailto:[email protected]] Sent: Sunday, May 11, 2014 1:52 PMTo: Andrew ColeCc: Suzanne StaiertSubject: public records request-‐-‐-‐Chaffee 2012 primary ballot review Andrew, It is my understanding that the SOS staff reviewed the multi-colored ballots from the ChaffeeCounty primary election in 2012 and turned the documentation over to the AG for investigation.The time has passed for that investigation to be complete. Please forward a copy of all internal memos, and internal and external correspondence related tothis matter. Additionally, If there are scans or pictures of the questionable ballots in the possession of theSOS, I request copies. Thank you for your assistance. Marilyn Marks970 404 2225
Monday, August 17, 2015 at 9:29:37 AM Mountain Daylight Time
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Subject: RE: public records request-‐-‐-‐Chaffee 2012 primary ballot reviewDate: Friday, May 16, 2014 at 11:32:25 AM Mountain Daylight Time
From: Andrew ColeTo: Marilyn Marks
In addiLon to the ballot images, we withheld an invesLgaLon tracking document. There were no otherwriNen materials beyond what I’ve provided. Let me know if you would like to discuss further. Best,Andrew303-‐869-‐4908 From: Marilyn Marks [mailto:[email protected]] Sent: Thursday, May 15, 2014 3:49 PMTo: Andrew ColeSubject: RE: public records request-‐-‐-‐Chaffee 2012 primary ballot review Thank you Andrew.Can you tell me what you withheld other than ballot images?I am looking for all written communications on this matter. I have the ballot images that I received from through litigation discovery. Marilyn From: Andrew Cole [mailto:[email protected]] Sent: Thursday, May 15, 2014 3:32 PMTo: Marilyn MarksSubject: RE: public records request-‐-‐-‐Chaffee 2012 primary ballot review Marilyn,ANached are the records responsive to your request, that we are able to release to you. We have withheldsome records, including ballot images, that may allow someone to determine how individuals voted. Asyou may remember, at the Lme of the elecLon, some counLes used serial numbers that were determinedlater to be unique and traceable to voters. Please let me know if you have any quesLons. Best,Andrew303-‐869-‐4908 From: Marilyn Marks [mailto:[email protected]] Sent: Sunday, May 11, 2014 1:52 PMTo: Andrew ColeCc: Suzanne Staiert
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Cc: Suzanne StaiertSubject: public records request-‐-‐-‐Chaffee 2012 primary ballot review Andrew, It is my understanding that the SOS staff reviewed the multi-colored ballots from the ChaffeeCounty primary election in 2012 and turned the documentation over to the AG for investigation.The time has passed for that investigation to be complete. Please forward a copy of all internal memos, and internal and external correspondence related tothis matter. Additionally, If there are scans or pictures of the questionable ballots in the possession of theSOS, I request copies. Thank you for your assistance. Marilyn Marks970 404 2225
From: Rob McGuire <[email protected]> Date: Friday, August 14, 2015 at 2:14 PM To: Marilyn Marks <[email protected]> Subject: FW: Conferral re Citizen Center v. Gessler FYI. Robert A. McGuire, III Shareholder | the Robert McGuire Law Firm 9233 Park Meadows Drive | Lone Tree, Colorado 80124 T 303.952.5077 | F 866.352.1051 | www.lawram.com This communication is confidential, may be privileged and is meant only for the intended recipient. If you are not the intended recipient, please notify the sender by reply and delete the message from your system. Any unauthorized dissemination, distribution or copying hereof is prohibited. From: Robert McGuire Sent: Friday, August 14, 2015 1:14 PM Subject: RE: Conferral re Citizen Center v. Gessler Jenny, thanks for your email. Ms. Marks is inquiring with the AG just to confirm that the case is formally closed. Assuming so, I should have that answer back from her shortly and we can then plan on wrapping this up. Thanks very much. Best, Rob Robert A. McGuire, III Shareholder | the Robert McGuire Law Firm 9233 Park Meadows Drive | Lone Tree, Colorado 80124 T 303.952.5077 | F 866.352.1051 | www.lawram.com This communication is confidential, may be privileged and is meant only for the intended recipient. If you are not the intended recipient, please notify the sender by reply and delete the message from your system. Any unauthorized dissemination, distribution or copying hereof is prohibited. From: Jenny Davis [mailto:[email protected]] Sent: Friday, August 14, 2015 11:54 AM To: Robert McGuire <[email protected]> Cc: 'Barbara Tidd' <[email protected]>; 'Lori Mitchell' <[email protected]> Subject: RE: Conferral re Citizen Center v. Gessler Rob, First, yes of course the ballots are under seal. The County continues to incur costs by having to store and secure three year old ballots. Attached is the letter from the SOS advising Ms. Marks that it closed its investigation and clearing the Clerk of any wrongdoing. The Clerk has received no communication from the AG’s office requesting the Clerk continue to store the ballots and the AG’s office has expressed no interest in this matter. It is unreasonable to expect the Clerk to hold ballots beyond what is statutorily required absent some sort of request or court order.
I don’t see much risk in a court allowing an amendment to the complaint years after the last supplemental complaint was filed and after dismissal was already appealed to the U.S. Supreme Court. Also, the time for appealing the cost order has long past. Nevertheless, in order to avoid the continued cost of securing old ballots, the County will agree to waive costs provided Citizen’s Center affirmatively agrees that the Clerk is no longer required to preserve the ballots. Jenny [Unrelated exchange deleted here by Marilyn Marks] From: Robert McGuire [mailto:[email protected]] Sent: Thursday, August 13, 2015 3:52 PM To: Jenny Davis Cc: 'Barbara Tidd'; Lori Mitchell Subject: RE: Conferral re Citizen Center v. Gessler Jenny, just touching base on the below discussion. Ms. Marks asked me to inquire whether the blue/black ballots are still under seal as they were at one time? She has not received any communication from the AG or SOS notifying her that her original complaint about the blue/black ballots was closed. So she is currently not sure she actually has the ability to agree to the destruction of those ballots simply as a function of the Citizen Center case ending. Is Clerk Mitchell willing to agree to Citizen Center’s offer to forego filing a supplemental complaint in exchange for Clerk Mitchell’s waiver of costs without addressing the preservation requirements of that separate investigation? Thanks very much. Best, Robert McGuire Robert A. McGuire, III Shareholder | the Robert McGuire Law Firm 9233 Park Meadows Drive | Lone Tree, Colorado 80124 T 303.952.5077 | F 866.352.1051 | www.lawram.com This communication is confidential, may be privileged and is meant only for the intended recipient. If you are not the intended recipient, please notify the sender by reply and delete the message from your system. Any unauthorized dissemination, distribution or copying hereof is prohibited. From: Robert McGuire Sent: Wednesday, July 29, 2015 12:28 PM To: 'Jenny Davis' <[email protected]> Cc: 'Barbara Tidd' <[email protected]>; 'Lori Mitchell' <[email protected]> Subject: RE: Conferral re Citizen Center v. Gessler Jenny, I spoke to Ms. Marks. She did not understand that the blue-black investigation was over, so she is going to ask the AG’s office to confirm that resolution. If you have a letter from the AG that you can provide, then that would save some time.
We agree with you that it makes sense to hold off on terminating the case until the implications are made clear. I will plan to circle back with you once the AG’s office has gotten back to Ms. Marks. Thanks very much. Best, Robert McGuire Robert A. McGuire, III Shareholder | the Robert McGuire Law Firm 9233 Park Meadows Drive | Lone Tree, Colorado 80124 T 303.952.5077 | F 866.352.1051 | www.lawram.com This communication is confidential, may be privileged and is meant only for the intended recipient. If you are not the intended recipient, please notify the sender by reply and delete the message from your system. Any unauthorized dissemination, distribution or copying hereof is prohibited. From: Robert McGuire Sent: Wednesday, July 29, 2015 10:19 AM To: 'Jenny Davis' <[email protected]> Cc: 'Barbara Tidd' <[email protected]>; 'Lori Mitchell' <[email protected]> Subject: RE: Conferral re Citizen Center v. Gessler Jenny, got your voicemail. I will find out what is going on and will give you a call this afternoon. Best, Rob Robert A. McGuire, III Shareholder | the Robert McGuire Law Firm 9233 Park Meadows Drive | Lone Tree, Colorado 80124 T 303.952.5077 | F 866.352.1051 | www.lawram.com This communication is confidential, may be privileged and is meant only for the intended recipient. If you are not the intended recipient, please notify the sender by reply and delete the message from your system. Any unauthorized dissemination, distribution or copying hereof is prohibited. From: Robert McGuire Sent: Tuesday, July 28, 2015 12:29 PM To: 'Jenny Davis' <[email protected]> Cc: 'Barbara Tidd' <[email protected]>; Lori Mitchell <[email protected]> Subject: RE: Conferral re Citizen Center v. Gessler Jenny, Ms. Marks understood that the AG’s office was still pursuing the blue/black investigation. Have you got a letter from the AG that says that investigation is concluded? Would you please send a copy of it if you have one? In any event, Citizen Center and Ms. Marks agree that they will not object to the
Clerk’s disposition, in accordance with applicable law, of any ballots that the Clerk is preserving for purposes of this case, once this case is dismissed by the Court. If this means that we have an agreement, please confirm and I will then file an unopposed motion to dismiss the remaining claims in the case. In the motion, I will state that Clerk Mitchell has waived the existing cost award in her favor in connection with the dismissal. Thanks, Rob Robert A. McGuire, III Shareholder | the Robert McGuire Law Firm 9233 Park Meadows Drive | Lone Tree, Colorado 80124 T 303.952.5077 | F 866.352.1051 | www.lawram.com This communication is confidential, may be privileged and is meant only for the intended recipient. If you are not the intended recipient, please notify the sender by reply and delete the message from your system. Any unauthorized dissemination, distribution or copying hereof is prohibited. From: Jenny Davis [mailto:[email protected]] Sent: Tuesday, July 28, 2015 9:46 AM To: Robert McGuire <[email protected]> Cc: 'Barbara Tidd' <[email protected]>; Lori Mitchell <[email protected]> Subject: RE: Conferral re Citizen Center v. Gessler Hi Rob, Took me awhile to track everyone down. The County is OK with waiving costs, but we want to reiterate that the Clerk will destroy all old ballots in accordance with applicable law. Please confirm back the Citizen Center and Ms. Marks agrees to that. Regarding the blue/black pen issue, that was resolved some time ago (see attached letter from SOS). The AG’s office has declined to pursue as well. Jenny From: Robert McGuire [mailto:[email protected]] Sent: Tuesday, July 28, 2015 9:44 AM To: Jenny Davis Cc: 'Barbara Tidd' Subject: RE: Conferral re Citizen Center v. Gessler Jenny, can you please let me know whether we have an agreement on the below terms? Thanks very much. Best, Robert McGuire Robert A. McGuire, III Shareholder | the Robert McGuire Law Firm 9233 Park Meadows Drive | Lone Tree, Colorado 80124 T 303.952.5077 | F 866.352.1051 | www.lawram.com
This communication is confidential, may be privileged and is meant only for the intended recipient. If you are not the intended recipient, please notify the sender by reply and delete the message from your system. Any unauthorized dissemination, distribution or copying hereof is prohibited.