1

DISTRICT COURT, DOUGLAS COUNTY, 4000 Justice Way Ste. 2009 Castle Rock, CO 80109

Petitioner: MARILYN R. MARKS, an individual (pro se) v.

Respondents: SALLY MISARE, in her official capacity as Clerk of the Town of Castle Rock, Colorado, and the TOWN OF CASTLE ROCK, a Colorado home rule municipality, and JUDY CRENSHAW, in her capacity as an election commissioner, and BETTY COX, in her capacity as an election commissioner, and JIM HENDERSON, in his capacity as an election commissioner, and RYAN REILLY, in his capacity as an election commissioner, and BRIAN TOBLER, in his capacity as and election commissioner

COURT USE ONLY

Case Number:

Division:

VERIFIED PETITION FOR RESOLUTION OF ELECTION

CONTROVERSY PURSUANT TO 31-10-1401

Petitioner Marilyn R. Marks, pro se, a Colorado elector and Registered Agent for Committee for Constitutional Rights (the Committee), an issue committee in the Town of Castle Rock, Colorado August 19, 2014 Special Election, (the Election), alleges as follows:

INTRODUCTION

This urgent matter pertains to controversy surrounding Colorado constitutional violations in

the Election as a result of flawed ballot handling in the ongoing Election currently being conducted by the Town of Castle Rock. Mail ballot processing is occurring daily and is planned to continue through the close of polls on Tuesday evening, August 19, 2014. As of August 14, 2014 over 3,250 ballots had been processed through the ballot scanner. The ballot processing to date has violated all voters rights to a secret ballot, and that violation will result in an election outcome that cannot be certified and will be required to be voided by the Court. This petition seeks the early termination and voiding of the Election.

Town officials were informed in writing on August 2, 2014, prior to any ballot processing, that constitutional violations related to secrecy in voting would likely occur if ballots were

2

processed as planned. Numerous warnings and complaints by citizens and voters regarding voter privacy and ballot secrecy were rebuffed and ignored by Town officials, as they executed flawed procedures that compromised the voters rights to a secret ballot.

The petitioner seeks this courts immediate order requiring that all ballot counting and processing be stopped and the election officials be ordered not to certify the election, and that the Town Council be ordered to call a new election for the earliest reasonable date.

NATURE OF THE CASE

1. This in an action pursuant 31-10-1401 C.R.S., for the resolution of an election controversy related to the conduct of the election in a manner, if allowed to continue, will very likely result in an invalid election that cannot be certified because of material violations of Colorado election law, the Town of Castles Election Code and the Colorado Constitution.

2. The clerk, the election commissioners and the election judges have deprived and continue

to deprive voters of their right to secrecy in voting under the Article VII, Section 8 of the Colorado Constitution, virtually assuring that the ultimate election results must be declared void ab initio. Taylor v. Pile, 391 P.2d 670, 673 (Colo. 1964).

3. This petition seeks an immediate order of this court to protect the rights of every voter to

vote an absolutely secret ballot by terminating the current election and declaring the election void ab initio.

PARTIES, JURISDICTION AND VENUE

4. Petitioner MARILYN R MARKS (Marks) is a registered elector of Colorado, and

resides in Denver, Colorado.

5. Marks is the Registered Agent of the issue committee Committee for Constitutional Rights (the Committee) for the August 19, 2014 Special Election (the Election.) formed pursuant to the Town Election Code.

6. Respondent TOWN OF CASTLE ROCK (the Town) is a Colorado home rule municipal corporation located in Douglas County, Colorado.

7. Respondent SALLY MISARE (Misare) is the appointed Town Clerk of the Town.

Misare is sued in her official capacity only.

3

8. Respondent JUDY CRENSHAW (Cresnshaw) is an appointed election commissioner of the Town, and is sued in her official capacity only. On information and belief, Crenshaw is a resident of the Town.

9. Respondent BETTY COX (Cox) is an appointed election commissioner of the Town, and is sued in her official capacity only. On information and belief, Cox is a resident of the Town.

10. Respondent JIM HENDERSON (Henderson) is an appointed election commissioner of the Town, and is sued in her official capacity only. On information and belief, Henderson is a resident of the Town.

11. Respondent RYAN REILLY (Reilly) is an appointed election commissioner of the

Town, and is sued in her official capacity only. On information and belief, Reilly is a resident of the Town.

12. Respondent RYAN REILLY (Reilly) is an appointed election commissioner of the Town, and is sued in her official capacity only. On information and belief, Reilly is a resident of the Town.

13. Respondent BRIAN TOBLER (Tobler) is an appointed election commissioner of the Town, and is sued in her official capacity only. On information and belief, Tobler is a resident of the Town.

14. This Court has jurisdiction over this action under Article VI, Section 9, of the

Colorado Constitution and 31-10-1401 C.R.S., which provides that this court has jurisdiction over the dispute at issue.

GENERAL FACTUAL ALLEGATIONS

15. The Election is an all mail ballot election where each eligible elector was to be mailed a ballot under provisions of the Town Code.

16. On information and belief eligible electors were mailed ballots in late July 2014.

17. Ballots may be returned by mail or by in-person delivery. 18. The Town will accept delivery of ballots in their sealed envelopes until 7 p.m. August

4

19, 2014.

19. On information and belief the Town had received over 5,200 ballots by August 14, 2014.

20. On information and belief the Town has approximately 31,000 registered active voters.

21. There are two ballot questions on the ballot and no candidates for office:

A. REFERENDUM ON ORDINANCE NO. 2014-03 SHALL TOWN COUNCIL ORDINANCE 2014-03 BE APPROVED WHICH ORDINANCE REVOKES THE AUTHORITY OF- THE TOWN MANAGER UNDER THE MUNICIPAL CODE TO PROHIBIT THE OPEN CARRYING OF FIREARMS WITHIN MUNICIPAL BUILDINGS, PARKS, RECREATION AREAS AND OTHER MUNICIPAL PROPERTIES OWNED OR OPERATED BY THE TOWN OF CASTLE ROCK? YES ___ NO ___

B. HOME RULE CHARTER AMENDMENT SHALL THE TOWN OF CASTLE ROCK HOME RULE CHARTER BE AMENDED BY ADDING A NEW SECTION 1-5 TO READ AS FOLLOWS? Section 1-5. Constitutional Rights.

Any restriction or limitation on the rights of citizens to keep and bear firearms enacted by the Town Council shall require the approval of the registered electors as a referred measure under Section 15-4 of this Charter. This Section shall not apply to Town Council action which makes unlawful the discharge or brandishing of firearms. This Section shall govern and control over Articles II and VII or any other conflicting provision of this Charter, and shall apply only to Council action taken after its adoption.

1. YES ____ NO __

22. Each ballot is constructed with one uniquely numbered detachable stub.

23. Each ballot issued to a voter is accounted for by use of the numbered stub which unique number is entered into the poll book alongside the voters name.

24. The ballot packet mailed to voters contained a ballot, a return envelope, and one page

of voter instructions.

25. The ballot packet did not contain a secrecy envelope or sleeve, as defined in 31-10-907(5) C.R.S.

26. On information and belief the ballot, when issued and mailed, was folded with the

ballot content to be voted showing on the outer surfaces of the ballot, with a blank reverse side showing on the folded inside surfaces of the ballot.

5

27. On information and belief, the majority of electors inserted their voted ballot into the

return envelope folding them in the manner in which they were originally folded with voted side out and with the identifying ballot stub attached.

28. The Towns Code, in a departure from state law, does not require the use of secrecy

sleeves if the ballot can be folded to conceal the electors vote. (2.01.140(A) Castle Rock Municipal Code.)

29. Ballot processing began on August 7, 2014 by election judges selected, hired and

trained by Misare.

30. On information and belief, judges opening the ballot return envelopes, verifying the stub number, unfolding the ballot and detaching the stub had visual access to identifiable voted ballots with the voters marked choices at numerous stations in the ballot processing. At times, voters names were called out in the ballot processing room by judges while the exposed voted ballot was being reviewed by the judges. This identifiable ballot information was also visible to watchers and media observers.

31. Judges processes for handling ballots bypassed the traditional use of the secrecy sleeve

which is routinely used to conceal the voted ballot while only the detachable stub is visible, verified against the poll book and then removed to de-identify the ballot.

32. The process by which the judges routinely opened and processed the ballots allowed

the judges, other judges, and any nearby staff, watchers or media observers to determine how individual electors had voted.

33. The process adopted by the judges was the standard process planned and executed

through August 12, 2014 when ballot envelope opening was temporarily halted.

34. Petitioner learned on August 2, 2014 that voters were not provided with secrecy sleeves in their ballot packet and the ballots were folded vote side out.

35. On August 2, 2014 Marks wrote Clerk Misare, Town Attorney Slentz, and Town

Council members in an email and stated her concerns about the lack of secrecy sleeves and the implications for compromised voter privacy. (Exhibit 1) Marks requested that a copy of her email statement be sent to the Election Commission, (the Commission.)

36. The Towns website (http://www.crgov.com/index.aspx?nid=101 states that the

6

Election Commission is responsible for all activities and duties relating to elections within the Town, including the establishment of election districts.

37. Petitioner received no responses to her concerns from the Election Commission (the

Commission), Town Council, or the Clerk.

38. No later than August 2, 2014 the citizens of Castle Rock became increasingly aware of the planned ballot processing procedures without secrecy sleeves, and the anticipated compromise of voters rights to a secret ballot. Beginning then and through the date of this filing, the compromise of ballot secrecy has been the subject of numerous local radio broadcasts, online news reports, newspaper articles, social media, and personal conversations, causing the secrecy issue to be known to a wide audience of voters prior to Election Day when the ballots are required to be received by the clerk.

39. On August 8, Marks filed a complaint (Exhibit 2)with the Election Commission

regarding secret ballot violations and other significant election quality problems that she had observed. Various other committees and individuals co-signed the complaint as co-complainants, requesting a hearing on the record.

40. On August 8 at 5 pm, the Commission held a public meeting with proper public notice

to promulgate a new watcher and media observer rule. The Commission stated that they had no authority to hear election complaints, and indicated that procedures in doubt regarding voter privacy would not be taken under consideration.

41. Patrick Neville, (Neville), Castle Rock voter and authorized watcher for the issue committee Power to the Peoples Constitution Committee, reported to the Commission and Misare during public comment session of the meeting that in his watching the ballot processing, he had been able to observe a large number of identifiable ballots as a result of the lack of secrecy sleeves and reckless handling of ballots by the judges, exposing the votes and ballot number simultaneously which he was able to ascertain. He reported that judges called out names and numbers of some voters while their voted ballot content was exposed to judges and watchers. Neville reported that at times he could see the votes on one only question and sometimes on both questions. The Commission did not respond to Nevilles concerns.

42. Petitioner formed the issue committee, Committee for Constitutional Rights on August 7, 2014 as the registered agent, but was not permitted to act as a watcher on behalf of the committee.

7

43. On August 10, on behalf of the Committee and three other issue committees filed a demand letter (Exhibit 3) with the Town and Commission seeking immediate resolution to the urgent issue of violations of the secret ballot, and threatening this litigation to resolve the urgent issue of constitutional violations of voters rights to a secret ballot.

44. On August 11, Committee watcher Jess Loban (Loban) and media observer John

Rush (Rush) observed the ballot processing activities between approximately 8:30 a.m and 9:45 a.m. They reported to the Committee, and on radio show Rush to Reason that the majority of ballots are subject to a process that discloses the voters private choices to judges and observing watchers. Rush recorded detailed video recordings of the procedures, documenting the routine exposure of traceable ballots to election judges. During the watching process Loban voiced his objections to the disclosures of the voters traceable ballot, but was ignored by the judges.

45. On August 14, 2014 Misare announced and demonstrated a new process (Retrofit

process) during a public demonstration that attempts to insert ballots as they are opened into secrecy sleeves in a blind process that purportedly does not allow the judges to have visual access to how individual voters voted.

46. The Retrofit process was announced as effective immediately and to apply to all

unopened and incoming ballots. It was announced that approximately 2,000 unopened ballots were on hand as of August 13, 2014 yet to be processed, and for which the process would be used.

47. At the August 14, 2014 demonstration Misare announced to the small group of

listeners that voters who have already cast ballots will be allowed to retrieve their unopened ballots and be issued a replacement ballot with a secrecy sleeve. The announced intent was to continue processing of ballots beginning August 15, 2014 despite the opportunity for voters to retrieve unprocessed ballots, creating an incentive for voters to rush to retrieve their ballot before it was processed. No plans are available for how this information is to be communicated to voters.

48. After the meeting, Petitioner raised additional objections with Town Attorney Bob

Slentz, (Slentz) stating that treating voters in such disparate manners would likely invite Equal Protection claims from voters. Marks objected to Slentz that the plan as announced would create at least five different classes of voters with differing levels of protection of their voting rights:

a. Voters who voted assuming the secrecy of their ballot, whose ballots have

now been processed, subject to secrecy violations, and cannot be retrieved by

8

the voter

b. Voters who were aware of ballot secrecy compromises and voted with the knowledge that their vote could be determined, and whose ballots are not yet processed when they attempt to retrieve their ballot, and are afforded the opportunity to vote a replacement secret ballot.

c. Voters who had voted aware of the secrecy compromises, whose ballots have

been processed and wish to retrieve their ballots to fully vote their conscience with a secret ballot, and cannot retrieve them because they have been processed.

d. Voters who receive information of the opportunity to retrieve their ballots only

after the close of the election.

e. Voters who have not yet cast their ballots who can now vote a secret ballot.

49. The original process for handling ballots by the election judges subject to watcher and media observation was the adopted and intentional procedure designed by the Clerk and other election officials and does not protect the voters rights to a secret ballot.

50. The processing steps that exposed the voters identifiable voted ballot were not deviations from adopted policy or procedure.

51. The policy and procedure employed by the judges until August 13, 2014 allowed judges and watchers to ascertain the identity of the voters and their ballot choices.

52. Petitioner and other citizens and issue committees have requested that Town officials,

including the election commissioners, address these concerns in time to salvage the election by submitting numerous emails, formal complaints, requests for meetings, public testimony, and pleas for meetings to resolve the issues without litigation. All such efforts have been met with minimal substantive response or interest.

APPLICABLE STATUTORY AND CONSTIUTIONAL PROVISIONS

53. The Town is required to conduct its elections under the provisions of its Home-Rule

Charter (the Charter), the Towns election code (the Town Code), the Rules adopted by the election commission (the Rules), and the Colorado Municipal Election Code (the State Code), (31-10-101 et seq).

9

54. The Town Code does not require secrecy sleeves if the ballot can be folded to conceal the electors vote. (Town Code 2.01.140(A))

55. The Election Commission is created by the Towns Home Rule Charter. The Charters

Article IV Section 4-4(b) provides that The Election Commission shall have charge of all activities and duties required of it by this Charter and by ordinances relating to the conduct of elections in the Town. In any case where election procedure is in doubt, the Election Commission shall prescribe the procedure to be followed.

56. Section 31-10-1538, C.R.S provides that Article 10 of Title 31] shall be liberally

construedso that fraud and corruption in municipal elections may be prevented.

57. Article VII, Section 11, of the Colorado Constitution provides that the general assembly shall pass laws to secure the purity of elections and guard against the abuses of the elective franchise.

58. Article VII, Section 8 of the Colorado Constitution provides that [a]ll elections by the

people shall be by ballot, and in case paper ballots are required to be used, no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it. COLO. CONST Art. VII, Sec 8

59. Section 31-10-1401(1) provides that, When any controversy arises between any

official charged with any duty or function under this article and any candidate or other person, the district court, upon the filing of a verified petition by any such official or person setting forth in concise form the nature of the controversy and the relief sought, shall issue an order commanding the respondent in such petition to appear before the court and answer under oath to such petition.

60. The Colorado Supreme Court has held, relying in part on Article VII, Section 8 of the

Colorado Constitution, that the secrecy of the ballot is guaranteed the citizen, that ballots marked in such a way that it may be revealed how a particular voter voted violate the constitutional requirement of a secret ballot, and that when the ballots cast in an election were not secret ballots, it is the duty of Colorado courts to declare such election void. Taylor v. Pile, 391 P.2d 670, 673 (Colo. 1964) (emphasis added).

61. The right to a secret ballot was recently reaffirmed in the recent case of Jones v.

Samora, 318 P.3d 462 (2014).

62. The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution mandates that [n]o State shall deny to any person within its jurisdiction the equal

10

protection of the laws. U.S. Const. amend XIV 1.

63. 42 U.S.C. 1983 provides that [e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws, shall be liable to the party injured in an action at law, suit in equity, or other p roceeding for redress. 42 U.S.C. 1983.

CLAIM FOR RELIEF (Resolution of Election Controversy)

64. Petitioner re-alleges here each of the foregoing paragraphs of the Verified Petition.

65. Section 31-10-1401(1) provides that, When any controversy arises between any

official charged with any duty or function under this article and any candidate or other person, the district court, upon the filing of a verified petition by any such official or person setting forth in concise form the nature of the controversy and the relief sought, shall issue an order commanding the respondent in such petition to appear before the court and answer under oath to such petition.

66. Because of the approved but improper by approved procedure that was used to process

at least the first 3,268 ballots, and the desperate treatment now unavoidable for all other voters, the election is fatally flawed and cannot be properly tabulated, certified or verified.

67. Given that the lack of voter privacy and opportunity to vote a secret ballot was well-

publicized during the voting period, thousands of voters were likely aware of the lack of secrecy when considering whether to vote and whether they could freely vote their conscience.

68. The ballot has not been a secret ballot since the beginning of the ballot processing period.

69. Because of the chilling effect of the loss of ballot secrecy, the tabulations of the ballots after Election Day cannot then be interpreted to reflect a free and fair vote of Castle Rock electors.

11

70. Without the intervention of this Court, election officials plan to proceed to attempt to tabulate and certify this fatally flawed election, but will be unable to determine the number of votes properly cast as secret ballots.

71. Article VII, Section 8, of the Colorado Constitution provides that [a]ll elections by the people shall be by ballot, and in case paper ballots are required to be used, no ballots shall marked in any way whereby the ballot can be identified as the ballot of the person casting it.

72. Secrecy of ballots is guaranteed to Colorado citizens, and an election must be declared

void where the right to a secret ballot has been denied. Taylor v. Pile, 391 P.2d 670, 673 (Colo. 1964)

PRAYER FOR RELIEF

WHEREFORE, Petitioner prays for relief as follows: A. That this Court immediately enter an order directing the Respondents to cease all

ballot processing and counting activities and terminate the election. B. That this Court enter a declaratory judgment that the election cannot proceed and is

void ab initio. C. That this Court order the Town to reschedule the Election for the earliest practical

date. D. That this Court order such other and further relief as the Court deems just and

appropriate. Respectfully submitted this 15th day of August, 2014.

Marilyn R. Marks 891 14th Street, #1916 Denver, Colorado 80202 Email: Marilyn@AspenOffice.com (970) 404 2225

VERIFICATION

12

The facts set forth in the foregoing VERIFIED PETITION FOR RESOLUTION OF

ELECTION CONTROVERSY PURSUANT TO 31-10-1401are true and correct to the best of my knowledge, information and belief.

______________________________________ Marilyn Marks STATE OF COLORADO ) )ss. COUNTY OF __________ ) The foregoing instrument was acknowledged before this ____ day of

______________, 20___, by _________________________________. Witness my hand and official seal. My commission expires:________________.

_______________________________________ Notary Public

Thursday, August 14, 2014 at 12:24:40 AM Mountain Daylight Time

Page 1 of 2

Subject: August 19 Elec-on PoliciesDate: Saturday, August 2, 2014 at 6:54:17 PM Mountain Daylight Time

From: Marilyn MarksTo: Bslentz@crgov.com, TownClerk@CRgov.com, smisare@crgov.comCC: Jennifer Green, pdonahue@CRgov.com

Ms Misare and Mr. Slentz,

I am deeply involved in election quality work in Colorado. The Special Election in Castle Rock has recently come to my attention via phone calls and emails I have received from concerned citizens who know my work in this field.

Castle Rock voters are fortunate to have the flexibility that the Home Rule charter permits to create specific election quality controls that are not embedded in the new HB14-1164. Given the importance of this election to the community and the high profile of this election, I would like to respectfully suggest that Council and the Election Commission consider promptly establishing the following controls that may help mitigate some of the degradation of controls brought about by HB14-1164 this year.

1. Missing Secrecy Sleeves. We have been made aware that mail ballots were apparently mailed to voters without secrecy sleeves, which are required by both the CR code and the Municipal Election Code and the SOS Mail ballot rules. Before ballot envelopes are opened by the judges, please put into place work-arounds to assure that voted content of identifiable ballots is concealed from the judges, staff, and watchers when stubs are attached and envelopes nearby. As you are probably aware, failure to do so can result in potentially voided elections due to violation of voters rights to an absolutely secret ballot. There are numerous work-arounds I can suggest if you have not already devised a solution for this apparent oversight. Voters are quickly losing confidence in the privacy of their mail ballots considering the many instances of careless ballot processing. Bypassing the use of secrecy sleeves does not help their confidence level, when non-compliance is so wide-spread across the state.

2. No Signature Verification. It is my understanding that the Town has chosen not to do signature verification, although all ballots are mail-in ballots are there is no identification or chain or custody documentation otherwise required. Given the ease of signature forgery and harvesting of discarded ballots without such controls, I would suggest that Castle Rock adopt signature verification procedures immediately just as municipalities such as Aspen and Colorado Springs have done. The Secretary of State will make all Castle Rock voters signature records readily available in easily searchable PDF format at a nominal (if any) charge. This would give judges and voters greater assurance that only eligible electors are voting.

3.. Third Party Delivery of Ballots. The new municipal election code provisions do not permit in person delivery of mail ballots except by the VOTER. This is presumably because there are no signature checks or other I.D checks. Only the voter is to return his ballot by in person delivery. He is not to have his spouse or friend deliver it. I note that in contrast, the Castle Rock election code allows for third party delivery of ballots, without chain of custody documentation or signature verification. This encourages ballot harvesting and fraud. Again, I urge signature verification at a minimum. Better practice would be to have both signature verification and chain of custody documentation on the envelopes as has been required for absentee ballots in the municipal election code for yearslisting the name and address of the deliverer of the ballots.

4. Early Counting of Ballots While early counting is allowed by the new provisions of the code, almost all experts and election judge manuals recommend against this questionable practice. I

marilynmarksTypewritten TextExhibit 1

Page 2 of 2

have watched it fail numerous times when trusted judges hint or even disclose outright how trends are going, and activists act on that information. It is human nature and the risk is just not worth the convenience of having early results to report. I urge you not to count ballots until election day.

5. Issue committees and watchers. Watcthers need enough available access to witness and verify each step in the conduct of the election. That generally requires watchers at each judges stationnot merely one per room. I encourage you and the Election Commission to adopt rules for full transparency for the watchers and media observers, as the SOS Rules provide.

If the Election Commission adopts as much as possible of the SOS Rules, many more vulnerabilities created by the municipal election code will be repaired.

Please send a copy of this note to the Towns election commissioners.

Please feel free to call me if you wish to discuss. 970 404 2225

Marilyn Marks 891 14th Street Unit 1916Denver CO 80202

Election Complaint Filed with Castle Rock Election Commission August 19, 2014 Special Election August 8, 2014 Dear Election Commissioners: This complaint covers six material issues currently in doubt or dispute requiring immediate guidance and resolution by the Election Commission: Covered in Ken Clark et al. complaint (August 5, 2014) 1. Media Observers Access to Election Processing 2. Issue Committees rights to appoint an adequate number of watchers 3. Electronic recording by Watchers/Observers in ballot processing areas

Issues Raised with Council, not covered in prior complaint 4. Violation of Voters Constitutional Rights to a Secret Ballot 5. Signature Verification 6. Early Counting of Ballots Issues 1.2.3 were raised in the Complaint filed by Ken Clark (Grassroots Radio Colorado/Freedom 560) et al. The Committee for Constitutional Rights and The Committee for the Protection of Our Second Amendment and other co-complainants below support and incorporate the Clark complaint in this complaint as Exhibit 1. See addendum below to complaint regarding Issue #2. 4. Violation of Secret Ballot Watchers reported today (August 7, 2014) the ability to see how individual voters voted because of the lack of secrecy sleeves or alternative work-arounds to guard voter privacy. The Town has been repeatedly warned of this constitutional violation and asked to immediately address it. To date the Clerk and Council have refused to do so. The mail ballots have been distributed to voters without a secrecy sleeve on the theory that it is not required given the instructions to the voters to fold the ballot so that the ballot contents could not be revealed. There are several problems with this process:

marilynmarksTypewritten Text

marilynmarksTypewritten Text

marilynmarksTypewritten Text

marilynmarksTypewritten TextExhibit 2

a. The ballots are not easily refolded by the voter to create a blank facing page for removal from the envelope. b. The instructions are not clear. It is likely that most voters will not understand that the ballot must be folded differently than it came to them. Watcher reports indicate that the vast majority of voters did not heed this implied suggestion to refold their ballots, rendering them exposed to judges and watchers when extracted from the envelope. c. The returned refolded voted ballot is difficult to strip of its detachable stub without judges seeing the ballot because the stub does not appear to be visible above the ballot itself. d. Clerk Misare reported on the ballot handling procedure on Tuesday evening and reported that identifiable ballot stubs are left on the ballot during the initial stages of processing. This makes it easy for judges, staff and watchers to see how the identifiable voter marked his ballot. Coloradans have a long held write to a secret ballot. The state Constitution provides: no ballots shall be marked in any way whereby the ballot can be identified as the ballot of the person casting it. Article VII, Section 8 The Castle Rock ballot as reportedly handled is certainly identifiable, primarily due to the proper use of secrecy sleeves. Clerk Misare described the process for the Town Council and stated that the ballots are removed from the envelopes with the identifiable stubs attached. This was confirmed by Watcher Patrick Neville. Judges and watchers should never be able to discern a voters vote, regardless of oaths taken or judges honest intentions. Voters expect and demand that judges and watchers be unable to learn how they vote their mail ballot. It has a chilling effect on voters if they are aware that judges and watchers can determine how they vote. The absolute privacy of the voters choices is so fundamental to our system of self-governance that the Colorado Supreme Court has held that elections are to be voided when there are such widespread violations of ballot secrecy. In short, the risk of the consequences of constitutional violations can hardly be worth the convenience of avoiding the use of secrecy sleeves. Reference points for Commissioners considerations The mail ballot plan issued by the Secretary of State requires jurisdictions filing such a plan to affirm the following:

19. Description of procedures to ensure privacy by use of a secrecy sleeve or secrecy envelope so receiving judges cannot tell how the elector voted (Please read and indicate your compliance by checking the box):

To protect the voters privacy, a secrecy sleeve or envelope will be included in

the mail ballot package. [Section 1-7.5-106(1), C.R.S.] In fact, despite Clerk Misares claims to the contrary, as recently as 2006, the Town used secrecy sleeves and affirmed the following to the Secretary of State:

Describe the procedures to ensure privacy by use of a secrecy sleeve or secrecy envelope so that receiving judges cannot tell how the elector voted. Each ballot package will include a secrecy envelope and voter instructions as to how to insert the voted ballot into the secrecy envelope so that the ballot stub will be visible without having to remove the ballot from the envelope. [Page 5, Exhibit 2.] The Secretary of State only yesterday (August 7, 2104) proposed the following rule for adoption: 7.5.7 AFTER ELECTION JUDGES VERIFY THE ELECTORS ELIGIBILITY AND SIGNATURE, THE COUNTY CLERK MUST DISSOCIATE AND SEGREGATE THE MAIL BALLOT RETURN ENVELOPE FROM THE SECRECY SLEEVE AND A VOTED BALLOT IN A MANNER THAT ENSURES NO PERSON IS ABLE TO DETERMINE HOW AN INDIVIDUAL VOTED. The recently passed Municipal Mail Ballot Election provisions in HB14-1164 require that a secrecy sleeve be included in the voters mail ballot packet. While Castle Rock has, in its code, created an exception to state law for ballots that can be folded to conceal the vote, the current Castle Rock ballot does not meet either strict or substantial compliance standards. Proposed Solution Returned ballot envelopes can be opened blindly (without judges ability to see what they are opening) and inserted into a secrecy sleeve with the ballot stub at the top, preferably peeking out over the sleeve. The ballots can then be processed by verifying the stub number against the envelope and poll book. The stubs should be detached and retained. The voted ballots should remain in the secrecy sleeve. The voted ballots (inside the secrecy sleeve) should be locked up and sealed in a transfer case and opened again on Election Day in the afternoon, removed from the secrecy sleeves, and fed into the Accu-vote scanner/tabulator by the judges. The scanner/tabulation can be performed at the time that the polls are closing. This

provides much better control over ballot secrecy and over machine software/hardware security. 5. Signature Verification There is little reason to avoid this simple and inexpensive election security procedure that is required in most Colorado elections. The Towns position is that signature verification is not required and cannot be performed without a legislative change to the Town code. We disagree, as the Town Code certainly allows signature verification and does not prohibit it. We believe that logical arguments can be made either way as to whether the Town Code requires signature verification. Good public policy and election security expectations strongly dictate that signatures should be verified, particularly because the Town, using its Home Rule authority, diluted the state law on third party delivery of ballots as one mitigation tool to lack of signature verification. Background Signature verification comparing ballot return envelopes to the voter registration record is required for all county, school board, state and federal elections. Signature verification is also required for municipal elections when the election is coordinated or operated by the County Clerk. Therefore in almost all Douglas County municipalities, signature verification is performed. In some other municipal independent elections, signatures are exported from the voter registration system and prepared for the municipalities by their County Clerks at very low (or no) cost. For example, Aspen and Colorado Springs (two greatly contrasting size municipalities) require such verification. Castle Rock mailed over 30,000 mail ballots. Over 20,000 such ballots are expected to land as live ballot packets in trash bins, discarded by uninterested voters. Without signature verification, the live packets present an invitation to easy election fraud. Verification is Permitted by Code The Towns Code provides

Once the ballot is returned, an election judge shall first verify the submitted ballot by comparing the information on the return envelope with the registration records to determine whether the ballot was submitted by an eligible elector who had not previously voted in the election.

The signature on the return envelope can certainly be interpreted to be information that is required to be verified against the voter registration record signature. Whether that verification is mandatory or optional is in doubt, and requires a decision by the Election Code. The other question before the Commission is if the verification is not required, should it be performed as a good practice to protect the quality of the election. Judges Signature Verification Training Basic signature verification training is routinely given to election judges in Colorado elections. The training time is less than 30 minutes. Recommended Resolution There is simply no reason to avoid verifying signatures, particularly after Castle Rock degraded the state statutes mail ballot chain of custody controls. The process should begin immediately for Mondays ballot processing. Already processed envelopes can be verified retroactively. If a large number of signatures are unverifiable, then measures can be taken to attempt to mitigate the concern. It is far better to know now than later if there are unverifiable signatures. Having the public understand this control is in place will enhance voter confidence and will deter those who would take advantage of this vulnerability. 6. Early Counting of Ballots While the Castle Rock code allows early counting of ballots starting 15 days before election day, it is a very questionable practice that leads to high risk of compromised election integrity and almost no benefit. Early counting leads to the ability of insiders to know and act on the early vote trends. The ballots are fed through the Accu-vote scanner/ tabulator as they are being processed daily. The scanner collects the votes cast. There is no reason to run the scanner until the polls are closed. There are numerous security protocols with scanning over a period of days. All the scanning can be accomplished easily on Election afternoon and evening. On Tuesday, August 5, Clerk Misare misrepresented to the Council the nature of the ballot processing with the Accu-vote scanner/tabulator. Clerk Misare claimed that the Accu-vote scanner merely counts the number of pieces of paper until Election Night when she inserts a programming cards to start the accumulation of votes. Obviously the scanner/tabulator does not work in that manner, and it is unclear why Clerk Misare would have misrepresented the scanner/tabulator operations.

Proposed Resolution Rather than exploring the motives of the early scanning and vote accumulation, and the related misrepresentations, the Election Commission should simply require that the ballots be secured (in secrecy sleeves) in sealed transfer cases and fed through the ballot scanner on Election Day afternoon or evening (better). Adequate controls should be installed to avoid chain of custody compromises of the memory cards involved. The Accu-vote scanner will operate at a throughput rate of approximately 1,200 ballots per hour. The entire election can be tabulated in a matter of a few hours. #2. Addendum --Watcher Rights issue The Commission is to consider whether an Issue Committee may appoint multiple watchers to act on behalf of the Committee, with one watcher allowed at the processing center at any one time. The Clerk questions whether the Code allows for more than one alternate watcher. The Clerk is failing to recognize the that archaic watcher language was written for polling place elections that happened between 7 a.m. and 7 p.m. on a single Election Day. The current election ballots were mailed in late July , and canvass will continue until late August. No two individuals can be expected to be available for watching every day for a month. It is only reasonable and fair to allow multiple watchers in any organization. The SOS Rules certainly contemplate that multiple watchers may be appointed. It is also necessary that watchers be allowed to be posted simultaneously at all ballot drop-off location, replacement ballot location and ballot processing centers. The Election Commission should make clear that a watcher from each committee will be allowed simultaneously at every physical ballot handling location. The Uniform Election Code makes clear that the watchers have statutory rights in elections governed by Colorados primary election code to witness and verify each step in the conduct of the election. Without adequate ability to appoint watchers capable of observing at all locations, the watchers cannot fulfill their responsibilities. Incorporation of August 5 Complaint filed by Ken Clark et al. The attached complaint (Exhibit 1) is hereby incorporated into this complaint and all such issues in doubt presented in that complaint requiring resolution are issues for determination under this complaint as well.

Respectfully submitted, Marilyn Marks Registered agent for The Committee for Constitutional Rights Marilyn@AspenOffice.com Ken Clark Registered Agent The Committee for the Protection of Our Second Amendment Ken@ken-clark.com Exhibit 1 August 5 complaint (incorporated here-in) and SOS Watcher Rules Exhibit 2 2006 Mail ballot plan for Castle Rock

August 10, 2014 Castle Rock Town Council 100 Wilcox Street Castle Rock, Colorado 80104 Via email TownCouncilDirect@CRgov.com Re: Violations of Voters Constitutional Rights Dear Mayor Donahue and Council Members: This letter constitutes our demand that the Town Council, Town Clerk, Election Commission and Election Judges immediately take all necessary actions to stop the exposure of identifiable voted ballots during the processing of ballots received in the August 19, 2014 Special Election and to remedy ongoing constitutional violations. The undersigned parties have an undisputed interest in protecting the voting rights of Castle Rock electors, and therefore request your urgent attention to this matter to avoid litigation seeking to obtain a court order to protect voters rights in this election. Constitutional Issue in Controversy The primary thrust of this letter is in relation to the Towns ongoing violations of Colorado voters constitutional rights to absolute secrecy of their cast ballots. The violations generated by the failure to provide voters with secrecy sleeves must be remedied immediately to avoid risking the validity and certification of the election. We call your attention to the fact that the Colorado Supreme Court has ruled on such violations as recently as this year in the context of voiding elections, such as Castle Rocks, where identifiable voted ballots are exposed to election officials. The August 19 election should be immediately safeguarded from such risks of being invalidated because of violations of voters constitutional rights. Without attention and action by Town officials, voters privacy will be further compromised and the Towns election will be put at further risk. We are confident that the Towns and Election Commissions attorneys are familiar with applicable case law regarding the constitutional violations we allege. We have also previously provided the Town with a copy of the Supreme Courts decision (Taylor v. Pile, 154 Colo. 516 (1964)) declaring it the duty of the court to void an election where ballot secrecy is widely compromised, in which the Court agreed that:

An election wherein ballots are numbered in such a manner that the vote of any person thereafter may be determined by comparison with the number on the ballot and the poll registration book is contrary to the state of Colorado's

marilynmarksTypewritten TextExhibit 3

constitutional and statutory guarantee of a secret ballot and, therefore, void ab initio. And ruled, The use of marked ballots' by which the vote of every elector could be ascertained resulted in a void election. Despite numerous recent objections formally raised by citizens, the Towns officials continue to brush aside voter privacy issues involving guaranteed constitutional rights to a secret ballot, placing the election at additional risk of being voided. Background As has been repeatedly communicated to Council and the Elections Commission since August 1 or before, we strongly object to the Towns decision to avoid using secrecy sleeves with mail ballots, coupled with the issuance of the ballot folded in such a manner as to expose voted ballot content to judges and watchers. Despite our objections formally communicated prior to ballot envelope opening, envelopes are being opened by judges exposing the supposedly absolute secret contents of the ballot to judges and watchers. At times, the voters name is called out as the exposed ballot is handled. We urgently seek an immediate and permanent end to these violations of voters rights guaranteed by the Colorado Constitution. We recognize that in a departure from state law, the Castle Rock Election Code does not require the use of secrecy sleeves. However, that provision is conditioned on the ballot being folded in a manner to conceal the votes. Castle Rocks ballots are not folded in that manner, and when removed from the envelope, the voted contents are visible simultaneously with the voter identification number. Watchers have observed this practice on Friday, and did observe how individual voters voted and have reported the conditions to the Election Commission via formal complaint dated August 7, 2014 and oral testimony. There is no assurance that the Election Commission will consider and act on complaints filed on this matter, given their August 7 statement that they do not have jurisdiction to address complaints. We wish to avoid litigation on this matter, but all efforts to solve this serious compromise of ballot secrecy through administrative channels have been unproductive to date, and generally been met with no response at all. Recommended Administrative Solution We strongly prefer an administrative solution to litigation to resolve this crucial but important controversy regarding constitutional voting rights. We propose the following solution, and believe that there are alternative viable administrative solutions as well. As stated in testimony to the Town Council on August 5 and to the Election Commission on August 8, there are simple, inexpensive workarounds available to provide voter privacy as required by Colorado law. For example, during the envelope opening process, the ballots could

be blindly removed from the envelope and inserted in a secrecy sleeve designed to accommodate the ballot with the detachable stub visible over the upper edge of the sleeve. The processing can then take place to protect voter privacy as it presumably would have occurred if the secrecy sleeve had been used by the voter. There are other workarounds available as well, however, we demand that any such workaround include the safeguard that votes not be visible or otherwise known to those handling the identifiable ballots. If such a solution is implemented, we request that all ballots that have been opened and processed prior to the time of implementation be segregated and not comingled with those for which improved secrecy controls will be used. This could be important in the event of a post-election legal challenge alleging ballot secrecy violations. Verification of Administrative Solution Upon the Towns agreement to implement ballot secrecy controls, we require that each of issue committees be permitted to use at least one watcher per committee who may be a Colorado registered voter (Colorado Voter Watcher -- not limited to Castle Rock voters) to observe ongoing ballot processing to ensure that procedures are implemented and maintained throughout the election. The identified Colorado Voter Watcher should be permitted to act as a watcher for the committee at any time during the conduct of the election. The implementation and oversight of this constitutional right to a secret ballot is imperative and urgent, and has significant legal implications. Therefore, we require that the violations be remedied immediately with oversight and verification by knowledgeable and expert watchers that we select. We have made diligent efforts to locate Castle Rock voters who are both available for watching the processing and are knowledgeable in election law, regulations and procedures. We have found no available Castle Rock voters meeting these qualifications who can fill this responsibility on a volunteer basis. Therefore, verification of remedies requires that we appoint knowledgeable Colorado voters as watchers, not limited to Castle Rock voter rolls. This Colorado Voter qualification is consistent with the Secretary of States Rule 1.1.35 (c) A designated watcher need not be a resident of the county he or she is designated in as long as he or she is an eligible elector in the State of Colorado. Note that if these ballot questions had been on the November, 2014 coordinated Douglas County ballot, our issue committees would have the right to appoint watchers from any county in the state. It is improper for our oversight rights to be diminished by the Towns decision to conduct the election locally rather than during a coordinated election. We believe that the Election Commission has the authority to approve this technical departure from the recently enacted Rule under the circumstances, or repeal that portion of the rule, particularly given that no interested parties rights are compromised, but only expanded.

Alternate Verification Oversight Given the urgency of the application of a solution and the need for expert oversight, an acceptable alternative would be to allow the registered agent of each committee, regardless of his/her residency, to act as the authorized watcher for verification of the remedies. Allowing the issue committees registered agent to act on his own behalf to verify the proper processing of ballots is practical, logical and consistent with the language of Castle Rocks election code: 2.01.030 Watchers. B. Each "interested party" in the case of an issue in a Town election is entitled to appoint one (1) registered elector of the Town to act in his or her behalf at the ballot processing center and polling place. Such "interested party" shall mean a "registered agent" as defined in Article V of this Chapter who has fulfilled the filing and other requirements of Article V. A registered agent who does not reside in Castle Rock should not be required to appoint an agent to represent him or her when they themselves are available for watcher duty. Registered agents who are not themselves Castle Rock voters and who are without access to knowledgeable volunteer watchers in Castle Rock are prejudiced in their and their committees ability to monitor the election in a practical manner. For example, data freely and immediately available to a watcher without cost is not available on the same basis to the issue committee. The Towns unfair exclusion of registered agents as watchers prejudices certain committees as it effectively requires them to make significant and costly unplanned expenditures to engage the services of local electors, such as attorneys, to perform tasks that can be performed by the committees registered agent as a volunteer. In fact, during the August 5, 2014 Council meeting, Ken Clark (a Denver resident and Colorado voter) was told by Council that he would be allowed access into the ballot processing area as an authorized observer if he were the registered agent of an issue committee. He promptly formed such an issue committee and became the registered agent. However, the very next day the Election Commission adopted a Rule requiring that watchers be Castle Rock electors, effectively reneging on Councils assurances to Mr. Clark. On Friday August 8, Mr. Don Mulligan, the registered agent for issue committee Freedom For Castle Rock, was denied access as a watcher due to his residency despite his responsibilities as the registered agent of the committee. Providing equal access for all registered agents of issue committees would solve numerous problems in this election. No voters or issue committees would be disadvantaged by providing equal access to all registered agents. Further Protecting Voter Rights to Ballot Secrecy Hundreds if not thousands of Castle Rock eligible electors are now aware of the violations of voter privacy occurring in this election. As a result, voters may be hesitant to freely vote their conscience, or to participate in this election. We offer the following recommendations to attempt to protect against successful post-election challenges that risk election invalidation:

1. Provide messages on the Towns website advising voters to fold their ballots in reverse, (with illustrations) and place voted ballots in a separate envelope, or to come by Town Hall or Douglas County Elections for a secrecy sleeve. 2. Provide a secrecy sleeve and a replacement ballot envelope for each voter who seeks one at Town Hall. 3. Post staff or judges at ballot drop-off sites to offer replacement ballot envelopes and secrecy sleeves. 4. Permit voters who have cast their ballots that have not yet been processed to retrieve them in the still-sealed envelopes and vote a replacement ballot in private with appropriate secrecy protections. (This provides some protection from the later claim that the voters vote was compromised by fear of the lack of secrecy.) 5. Permit voters who have not voted to vote a traditional polling place secret ballot without a return envelope or an attached identifiable stub in a ballot box in Town Hall. (This provides some protection from post-election claims of the inability to vote a secret ballot.) The above measures would also communicate the Towns commitment to voter privacy. Request Please address this matter with the election officials Monday morning, August 11. If procedures are left unchanged this matter is likely to require emergency litigation under CRS 31-10-1401. Given the procedures being used now, this election is at risk of being invalidated pursuant to a post-election challenge on constitutional grounds. The voice of the voters is essential and must not be endangered in this reckless way. If acceptable administrative solutions cannot be reached immediately to protect the voters constitutional voting rights, Town Officials leave us no choice but to seek a court order. We are happy to talk with you about these concerns and solutions at your earliest convenience. Until such time as the Town can make a decision on these issues, we urge the immediate cessation of opening of ballot envelopes. We have no objection to pre-opening processes continuing until resolutions can be reached. If additional supporting information is required in order to reach your decision to halt these practices, we are prepared to supply the factual basis and considerable legal authority. Please contact Marilyn Marks (970 404 2225) for supporting information if it would be helpful. Respectfully, Marilyn Marks Registered Agent, Committee for Constitutional Rights.

(Signature on file) Ken Clark Registered Agent, Committee for the Protection of Our Second Amendment (Signature on file) Don Mulligan Registered Agent, Freedom for Castle Rock (Issue Committee) CC: Sally Misare, via mail Bob Slentz, via email

Castle Rock PetitionExhibit1Exhibit 2Exhibit 3