Legal, journalism experts criticize Clerk's media ban

Election officials throughout El Paso County attempted to bar media outlets from observing polling places on Election Day, in possible violation of state election rules and federal constitutional rights of a free press.

Legal and journalism experts say County Clerk Bob Balink's memo to employees on Election Day - which stated that "all media must stay outside of the 100-ft limit area" - was a blow to the transparency required in a fair and free election.

Lee Giarrusso, a volunteer attorney with Just Vote Colorado, a voter service sponsored by Common Cause and other nonprofits, said a clerk and recorder cannot bar the media from polling places.

"There's nothing that bars you," Giarrusso said.

Reporters from The Associated Press, KOAA/Channels 5&30, KKTV/Channel 11, KRDO/Channel 13 and The Gazette were asked to leave polling places throughout the county on Tuesday. Joe Bevans, chief photographer for KOAA, said he's been covering local elections for 24 years and this was the first time he was denied access to polling places. KXRM Fox 21 was the only media outlet contacted that reported no trouble.

When asked about the media ban, Balink denied that it might contradict Colorado Secretary of State's rules regarding media, which state: "Media Observers with valid and current media credentials may be present to witness early voting, election day voting and the processing and counting of provisional, mail and mail-in ballots."

Balink said his goal was to protect voters who may be intimidated by cameras, and to protect election workers from being distracted by questions.

"We didn't deny anybody. Voters get nervous about it, not us," he said Tuesday night.

"The media is not there to talk to election workers. They have work to do."

Colorado Secretary of State spokesman Rich Coolidge defended Balink and said that, according to the department's attorneys, the county clerk was in compliance with election law and can decide which media to allow.

But First Amendment attorneys said constitutional rights are not to be decided by a county clerk, and media access is seen as a safeguard in ensuring elections are executed fairly.

"They do have to allow media observers to observe Election Day voting," said Chantell Taylor, director of the Colorado-based nonprofit Ethics Watch. "If media was banned entirely, it seems to me that's a violation of these rules. I think he's wrongfully denied access."

Ed Otte, executive director of the Colorado Press Association, helped write the rules in partnership with the Secretary of State's office and the Colorado County Clerk's Association. The media, he said, have an important role to play on Election Day.

"You're there representing the public and ensuring the election is being executed properly," Otte said. "Transparency is vital. It makes everyone suspicious if they won't allow reporters and photographers in there."

Jim Clarke, AP bureau chief of Colorado, said: "We bring lawsuits around the country on this issue and, guess what, we win every time. James Madison is on our side."

The AP, CPA and Ethics Watch plan to follow up with state election officials to resolve the issue for future elections.

Taylor said Balink's conduct has "been a concern" to Ethics Watch during the election season, claiming that he has "continuously set up various roadblocks for transparency and put out misinformation from his office that tended to disenfranchise voters."

Among the incidents for which Balink has been criticized: His office sent information to Colorado College voters indicating that they could not vote locally, when they could.

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CONTACT THE WRITER: 636-0226 or bill.reed@gazette.com