Chaffee County Election Complaint 2012 Primary

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)
attorney.general@state.co.us
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 Generals 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
Secretarys office reported on February 1, 2013 that the matter would be best
handled by a prosecuting attorney. The Secretarys representative reported that
they had referred the matter to the District Attorney who declined to investigate.
The Secretarys 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 Generals 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 Generals 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 Clerks 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 clerks 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 voters 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
Marilyn@AspenOffice.com
cc: Wayne Williams, Secretary of State (wayne.williams@sos.state.co.us)
Suzanne Staiert, Deputy Secretary of State
(Suzanne.Staiert@SOS.STATE.CO.US)
Lori Mitchell, Chaffee County Clerk (lmitchell@chaffeecounty.org
Jennifer Davis, Chaffee County Attorney (jdavis@chaffeecounty.org)
County of Mecklenburg )
)
State of North Carolina
ss.
)
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 States 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 States office concerning the
official status of the investigation and have been unable to learn what aspects of
my complaint were referred to the Attorney Generals 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 States office on this matter
was Deputy Secretary Suzanne Staiert.
10. Deputy Secretary Staiert told me informally that the review by the
Secretarys 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.
Exhibit 1
001
Monday, A ugust 1 7, 2 015 at 1 0:21:55 A M M ountain Daylight Time
Subject: FW: Complaint --Chaee County Ballot Irregulari8es

Date: 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 PM
To: Suzanne Staiert
Cc: Andrew.Cole@SOS.STATE.CO.US; Richard Coolidge <richard.coolidge@sos.state.co.us>
(richard.coolidge@sos.state.co.us); Scott.Gessler@SOS.STATE.CO.US; Benjamin.Schler@SOS.STATE.CO.US
Subject: 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-spread
various 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 Departments 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 Marks
970 404 2225
Page 1 of 1
002
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
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
_____________________________________________________
003
Citizen Center/Chaffee 2159
004
005
Monday, A ugust 1 7, 2 015 at 9 :27:44 A M M ountain Daylight Time
Subject: RE: public records request---Chaee 2012 primary ballot review

Date: Thursday, May 15, 2014 at 3:31:33 PM Mountain Daylight Time
From:
To:
Andrew Cole
Marilyn Marks
Marilyn,
AJached are the records responsive to your request, that we are able to release to you. We have withheld
some records, including ballot images, that may allow someone to determine how individuals voted. As
you may remember, at the Mme of the elecMon, some counMes used serial numbers that were determined
later to be unique and traceable to voters.

Please let me know if you have any quesMons.

Best,
Andrew
303-869-4908

From: Marilyn Marks [mailto:marilyn@aspenoce.com]
Sent: Sunday, May 11, 2014 1:52 PM
To: Andrew Cole
Cc: Suzanne Staiert
Subject: public records request---Chaee 2012 primary ballot review

Andrew,
It is my understanding that the SOS staff reviewed the multi-colored ballots from the Chaffee
County 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 to
this matter.
Additionally, If there are scans or pictures of the questionable ballots in the possession of the
SOS, I request copies.
Thank you for your assistance.
Marilyn Marks
970 404 2225
Page 1 of 1
Monday, A ugust 1 7, 2 015 at 9 :29:37 A M M ountain Daylight Time

Date: Friday, May 16, 2014 at 11:32:25 AM Mountain Daylight Time
From:
To:
Andrew Cole
Marilyn Marks
In addiLon to the ballot images, we withheld an invesLgaLon tracking document. There were no other
wriNen materials beyond what Ive provided.

Let me know if you would like to discuss further.

Best,
Andrew
303-869-4908

Sent: Thursday, May 15, 2014 3:49 PM
To: Andrew Cole

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:Andrew.Cole@SOS.STATE.CO.US]

Sent: Thursday, May 15, 2014 3:32 PM
To: Marilyn Marks

Marilyn,
ANached are the records responsive to your request, that we are able to release to you. We have withheld
some records, including ballot images, that may allow someone to determine how individuals voted. As
you may remember, at the Lme of the elecLon, some counLes used serial numbers that were determined
later to be unique and traceable to voters.

Please let me know if you have any quesLons.

Best,
Andrew
303-869-4908

Sent: Sunday, May 11, 2014 1:52 PM
To: Andrew Cole
Cc: Suzanne Staiert
Page 1 of 2
Cc: Suzanne Staiert

Subject: public records request---Chaee 2012 primary ballot review

Andrew,
It is my understanding that the SOS staff reviewed the multi-colored ballots from the Chaffee
County 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 to
this matter.
Additionally, If there are scans or pictures of the questionable ballots in the possession of the
SOS, I request copies.
Thank you for your assistance.
Marilyn Marks
970 404 2225
Page 2 of 2
Exhibit 5

From: Rob McGuire <ram@lawram.com> Date: Friday, August 14, 2015 at 2:14 PM To: Marilyn
Marks <marilyn@aspenoffice.com> 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
T 303.952.5077 | F 866.352.1051 | www.lawram.com
From: Jenny Davis [mailto:jdavis@chaffeecounty.org] Sent: Friday, August 14, 2015 11:54
AM To: Robert McGuire <ram@lawram.com> Cc: 'Barbara Tidd' <btidd@chaffeecounty.org>;
'Lori Mitchell' <lmitchell@chaffeecounty.org> 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 AGs office requesting the Clerk continue to store the ballots and the
AGs 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 dont 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 Citizens
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:ram@lawram.com] 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 Centers offer to forego filing a
supplemental complaint in exchange for Clerk Mitchells waiver of costs without
addressing the preservation requirements of that separate investigation?
Thanks very much.
Best, Robert McGuire
T 303.952.5077 | F 866.352.1051 | www.lawram.com
From: Robert McGuire Sent: Wednesday, July 29, 2015 12:28 PM To: 'Jenny Davis'
<jdavis@chaffeecounty.org> Cc: 'Barbara Tidd' <btidd@chaffeecounty.org>; 'Lori Mitchell'
<lmitchell@chaffeecounty.org> 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 AGs 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 AGs office
has gotten back to Ms. Marks.
Thanks very much.
T 303.952.5077 | F 866.352.1051 | www.lawram.com
From: Robert McGuire Sent: Wednesday, July 29, 2015 10:19 AM To: 'Jenny Davis'
<jdavis@chaffeecounty.org> Cc: 'Barbara Tidd' <btidd@chaffeecounty.org>; 'Lori Mitchell'
Jenny, got your voicemail. I will find out what is going on and will give you a call
this afternoon.
Best, Rob
T 303.952.5077 | F 866.352.1051 | www.lawram.com
From: Robert McGuire Sent: Tuesday, July 28, 2015 12:29 PM To: 'Jenny Davis'
<jdavis@chaffeecounty.org> Cc: 'Barbara Tidd' <btidd@chaffeecounty.org>; Lori Mitchell
Jenny,
Ms. Marks understood that the AGs 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
Clerks 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
T 303.952.5077 | F 866.352.1051 | www.lawram.com
From: Jenny Davis [mailto:jdavis@chaffeecounty.org] Sent: Tuesday, July 28, 2015 9:46 AM To:
Robert McGuire <ram@lawram.com> Cc: 'Barbara Tidd' <btidd@chaffeecounty.org>; Lori
Mitchell <lmitchell@chaffeecounty.org> 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 AGs office has
declined to pursue as well.
Jenny

From: Robert McGuire [mailto:ram@lawram.com] 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.
T 303.952.5077 | F 866.352.1051 | www.lawram.com

Chaffee County Election Complaint 2012 Primary

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Chaffee County Election Complaint 2012 Primary

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August 16, 2015

Office of the Attorney General

As of August 16, 2015, based on the representations of Chaffee County, I believe

Violation of Colorado statutes

MARILYN R. MARKS (Affiant), being of lawful age and first duly

I reside at 891 14th Street, Denver, Colorado 80202.

I have been a registered voter in the state of Colorado since 2002.

Monday, A ugust 1 7, 2 015 at 1 0:21:55 A M M ountain Daylight Time

Subject: FW: Complaint --Chaee County Ballot Irregulari8es

From: Marilyn Marks

Complaint regarding Chaffee County 2012 Primary Ballots

Citizen Center/Chaffee 2159

Citizen Center/Chaffee 0679

Citizen Center/Chaffee 2069

Monday, A ugust 1 7, 2 015 at 9 :27:44 A M M ountain Daylight Time

Subject: RE: public records request---Chaee 2012 primary ballot review

Monday, A ugust 1 7, 2 015 at 9 :29:37 A M M ountain Daylight Time

Subject: RE: public records request---Chaee 2012 primary ballot review

From: Andrew Cole [mailto:Andrew.Cole@SOS.STATE.CO.US]

Cc: Suzanne Staiert

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