-Aspen's historic May 5, 2009 IRV election audited as single ballots- 5/5/09 Aspen CO held an instant runoff election (IRV) for mayor and 2 council members. Interpreted contents of each ballot, scanned by True Ballot, were publicly released. Open records requests for a CD of image scans were denied. Aspen has been sued to protect records from destruction and to allow inspection of the scanned ballot files. A Court of Appeals ruling holds that unidentifiable ballots are public records.

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Tuesday, October 27, 2009

Email by Marilyn Marks to Aspen City Council 10/27/09

Mayor Ireland, Council members Johnson, Romero, Skadron and Torre:

I want to go on public record by emphatically objecting to Jack Johnson’s false allegations and implications suggesting that any inappropriate meetings or communications took place between myself and the Election Commission. I will be brief here and make no attempt to answer his many tawdry allegations, although I would be happy to answer in detail any questions you have.

Thanks to the Mayor for giving me a chance to respond last night in public comment. And thank you Mick for reminding me to respond to the false allegation that I had private meetings with Chris and Elizabeth together. Despite Johnson’s claims to the contrary, to the best of my recollection, I have only had one conversation with the two of them (outside of the public meetings of the EC and the City Council.) That was in the Sister Cities Room with the press present while we were awaiting the EC item on the agenda of City Council in September. Our conversation was all social as I recall, and certainly not private. The set of separate conversations that took place in that room, adjacent to the City Council meeting wouldn’t be construed as a meeting of the Election Commission.

I did however, on at least three occasions (possibly more), visit Kathryn Koch’s office along with Elizabeth to informally discuss the IRV process, election process and voter education on IRV. Some of those discussions were before I was a candidate, and some after, but my recollection is vague on the details of what was discussed at which meeting. I don’t believe I retained any written records from those meetings. But if asked, I will go through old notebooks to check.

As I said last night, if there is missing communication from me to any election commissioner on EC business, I will be happy to search for it in my records and produce it voluntarily if I have it. I will await a request from the city as to which specific records to search for.

If we step back and look at Johnson’s allegations of attempts to influence the Election Commission and his charges of wrongdoing, they are not only fabricated and off-base, but rather nonsensical, lacking any substance. What is Johnson suggesting? That I have unduly influenced the EC actions? But the clear facts are that I have made one request of the Commission, and that is to protect election records which they have unanimously honored with the support of the City attorney’s office. That is hardly a controversial or partisan issue and I am satisfied with the success of my influence in that matter.

Millard Zimet has filed a complaint that is completely independent of mine. That complaint is still pending.

Harvie Branscomb requested EC help in obtaining some election records and requested EC philosophical support for his audit work.

The actions of the Commission have been quite limited given their choice to wait for a determination of whether they should seek independent counsel. What possible actions could the EC have taken, that are in any way contrary to the public interest? Johnson charges that there are conflicts of interest, and a candidates’ right to petition citizen boards. Perhaps he has misunderstood the inherent design of multi-partisan citizens’ oversight?

Johnson seems to be challenging the fundamental structure of the bi-partisan election commission, intended to have healthy partisan competition, by usually having the major parties nominate the commissioners. In fact State statute requires that County Election Canvass Boards serving the EC function be appointed by the two major parties to encourage this healthy competition. Kathryn Koch assured Elizabeth in early April that there was no conflict or problem (in working, or potentially being an officer, in my campaign), and performing her role on the EC. That is consistent with our Charter. Has anything changed within the law or someone’s understanding of it since then?

As I have repeatedly stated, formally and informally, I have no desire, ability or intention to challenge the outcome of the election. The deadline for that decision was May 22.

In fact, if I actually had such a desire, I would still have every right to pursue my interest in whatever manner is legal, including personal communication with members of the Election Commission. Instead, I consciously chose to forego a timely legal contest, and focus on reforms for future elections. This decision, as I became better informed, invariably led to the Election Commission. If overturning the election were my goal, I would have gone about it more efficiently with quickly and timely filed litigation. My current suit is quite clear in its single and limited purpose---the preservation and release of specific public election records.

In opposition, irresponsible statements from both former and present council members are invoking an accusatory straw man argument calling my election reform efforts a Trojan horse for a “recount,” “upending the election,” and the like. These comments seek to discredit my efforts without relying upon facts. The City Council ought to be embarrassed when it allows my considerable voluntary personal investment in responsible civic engagement to be discredited by such rude and unfounded remarks. I am hereby asking City council members to refrain from making or supporting any false or misleading allegations. I have heard too many echoes of false allegations from the Council table.

If the Council or any citizen has a question regarding the integrity of the actions or deliberations of the Commission or indeed of any citizen, they ought to state their specific concern and evidence, so that it can be addressed, and then arguments based on fact can be advanced. I feel that it is inappropriate for Council to allow a public meeting to be used to make such false, slanderous and defamatory comments and unfounded allegations against citizens. If I were making comments and allegations of this nature I would not expect to be given a welcome by the Council, much less told that I was polite and professional. Even as Halloween draws near, a politically motivated witch hunt will leave our community under a black cloud of suspicion, fear and hatred for the foreseeable future. It will discourage public service by those who rationally do not want to subject themselves to such defamation and abuse.

Please contact me directly if you have questions or need additional information.

Marilyn Marks

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