William and Mary Law School

Election Law "War Game" Tests Colorado Statute Involving Public Access to Voted Ballots

The Election Law Program, a joint program of William & Mary Law School and the National Center for State Courts, ran the second of three "Election Law War Games" at a Colorado judicial conference on September 11 in Vail, Colo. Funded by a grant from the Deer Creek Foundation, the goals of the war game project are twofold: to troubleshoot state election laws and to demonstrate for judges the unique nature of election litigation. To accomplish these goals, the Election Law Program works with state election administrators to develop factual scenarios which are then "war gamed" as an oral argument at state judicial conferences.

In Colorado, with the generous assistance of Colorado Secretary of State Scott Gessler (Colorado's chief election officer) and his staff, the Program developed a hypothetical scenario that put pressure on a Colorado election statute involving public access to voted ballots. Specifically, a recent amendment to Colorado's Open Records Act (CORA) grants members of the public access to voted ballots, but denies access during the canvass period and during a recount. The canvass period ends 17 days after the election, but candidates have until 31 days after Election Day to request a recount. The war game posited the following scenario: what if a CORA request is made after the canvass but just before a recount petition is filed? Should CORA access be granted or denied?

At the Vail war game, two Colorado election attorneys, Martha Tierney and Mario Nicolas, argued the hypothetical case before a three-judge panel composed of two judges from the Colorado Court of Appeals and one from the Denver District Court. William & Mary Law students Megan Mitchell '13 and Jim Orgozalek '14 (with assistance from Andrew McCoy '13) fully briefed the case under the supervision of the Program's co-director, Professor Rebecca Green, with input from the Colorado counsel, Colorado's Director of Elections Judd Choate, and national election law expert Professor Steven Huefner of the Ohio State University's Michael E. Moritz College of Law.

After considering the arguments, the three-judge panel concluded that the statute required public access to the ballots and that legislative intent could not be considered giving the statute's clear language on its face. The second half of the session featured a panel, consisting of the two attorneys, Director Choate, and Professors Green and Huefner. Panel participants discussed election law issues that might arise in Colorado before, during, and after Nov. 6.

Briefs, bios and supporting materials from the Colorado Election Law War Game (and materials from the first war game held in Norfolk, Va., on May 16, 2012), are available at the Election Law Program website. The third, and final, "Election Law War Game" will be held in Wisconsin on December 7. Inquiries may be addressed to Professor Rebecca Green at [[w|rgreen]]. The Program is grateful to and would like to acknowledge the Deer Creek Foundation for its generous support.