-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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Monday, December 21, 2009

Aspen Mayor Mick Ireland to the "voting rights community"

Aspen Mayor Mick Ireland's message of December 20, 2009
(followed by a copy annotated by Harvie Branscomb and Marilyn Marks)

Subject: Why we don't need your help in running our elections and why a recount is not needed

 

To the "voting rights community"


There are many of us in Aspen who do not support the intervention of people who do not live here in our elections.  It should be noted that the litigation you ask us to financially support is being funded in part by Ms. Marks, the candidate who lost the election and another unknown part is coming from people who have no direct knowledge of Ms. Marks and her ongoing campaign to discredit the City of Aspen.  It is odd that you claim those who disagree with her are conducting a “smear” campaign, while excusing her tactics as a candidate, which are of record and met with widespread disapproval by the electorate including some of her supporters.


I would be much more impressed if your call for “transparency” included a call for the full disclosure of who and how this litigation is being financed. 


Her (ongoing) campaign is, like this lawsuit, funded largely by people who do not live here.  Very few of them are aware that the city attorney has issued an opinion that concluded the state constitution and the state statutes require the ballots be kept secret. The opinion is well grounded in fact and law and was written by an attorney with more than 30 years of public service.    Local taxpayers will have to pay to defend the lawsuit so that Ms. Marks and her close friend will be able to indulge in a "review" of ballots that amounts to a recount notwithstanding the fact that 200 of the ballots were recounted by hand and agreed 100% with the results of the official machine count.


What are the odds that the ballots contain a significant error when not one of the sampled ballots contained an error??  Granted, the sample was not a strictly randomized subset, but the odds of finding 200 ballot with a non systematic selection that have zero errors are pretty small.


The state has not, contrary to some claims, defined ballots or ballot images as public records open to inspection.  To be sure, the legislature has been asked to do so but has declined.


For some reason, it appears that  you and our allies are offended by anonymous comments on a blog kept by the Aspen Times.  Ms. Marks propensity for retaliation is well known and I cannot blame anyone for protecting their identity when criticizing her.  She has told at least two people at the city that their jobs would be in jeopardy when "we get power."  Neither employee wants to be part of that story.


 She also called (in an e-mail) for the criminal investigation of a county commissioner who she said used erroneous facts in an election campaign to build affordable housing.  Mess with Ms. Marks and chances are she’ll be calling the local district attorney asking for a criminal investigation of your temerity to disagree with her viewpoint.


There doesn't seem to be any sympathy on your part for people like myself who are repeatedly insulted on the same blog with anonymous comments.  Is that OK while comments contrary to your position are per se "invective" and "smears?"


I note that there is yet another story on this service about the 11 ballots undercounted in the unofficial count.  This is old news and had no impact on the official count, which count was not done on the Diebold/Premier machines.  Is this just an attempt to use this forum to solicit funds for the litigation?


I know that I am supposed to believe that it is a coincidence that Ms. Marks attorney is a Republican party official in Colorado and that her treasurer, who violated the Open meetings Act as an election commissioner, once bragged on her service to Karl Rove.  Coincidence or not, it feels a lot like a Swift Boating: get the money from undisclosed donors, repeat the lies over and over again until a weary public accepts a distorted version of reality.


I have supported fair elections and voter registration reform for years as have many of my friends.  This attempt to discredit the only election in the state that allowed full observation of the count and disclosure of the results of each ballot does not advance your cause.  I doubt if any of us will support legislative efforts by you or Mr. Branscom without questioning what your true agenda is.


 

Have a nice Christmas and holiday season.


Mick Ireland

920-2858

515 Indepndence Place

Aspen CO 81611


[ed. note: 12/22/09 11AM changed number of ballots audited to precise numbers in text below]
Followup message from Harvie Branscomb:

Knowing that many of the facts presented by Mayor Ireland are in dispute, I asked Marilyn Marks to write up her responses to Ireland’s message. It is inserted into his text below which has been grayed out for readability of the comments.  Mayor Ireland advises campaigns of politicians in other districts where he is not a voter. Thus it is odd to hear him complain about “intervention” in other elections. 


His complaint about  alleged retaliation by Marilyn  Marks seems out of place compared to the potential for retribution which his office permits. I know of personal cases where fear of retribution by the city government has been expressed to me as a reason not to speak out in public on this election topic. The mayor has mentioned the continued campaign as a negative on many occasions. It seems curious that an incumbent who needs no campaign to get his word out would find it necessary to prevent any opponent from engaging in one. Ms. Marks has, since the election, engaged in a campaign to achieve election transparency and not a campaign for election. One doesn’t usually make election reform a major part of a campaign for office, except possibly for the position of designated election official.


Marilyn Marks ran for mayor for the first time and for only 30 days and came very close to winning. Now she is being denigrated as a “sore loser” because of her advocacy of election reform.  Mayor Ireland may be correct about the Aspen election being the only one in the state to allow some observation of each ballot during counting and full access to all interpreted contents of ballots after the election. Both of these are very valuable innovations in public elections and deserve commendation.  There is no attempt to discredit the election, but to correct its deficiencies and promote its positive qualities.  As seen here, it is Ireland himself who seems bent on spinning the efforts of Marks, Black Box Voting, Joyce McCloy, myself and others as destructive  instead of constructive. He may question our agenda, but it is transparently obvious that ours is to seek better election quality, not an alternate outcome to a specific election.


Harvie Branscomb 12/20/09 harvie at media.mit.edu  970-9631369


From: Marilyn R Marks []
Sent: Sunday, December 20, 2009 9:00 PM
To: Harvie Branscomb
Subject: RE: Why we don't need yourt help in running our elections and why a recount is not needed


Harvie,

The very statements and tone of Ireland’s memo belie his subject line. Obviously, we do need the help of election integrity advocates and expertise. 

It has been seven months since the election. It has been 10 months since I began to raise issues concerning the IRV and election process, long before I considered being a candidate. There has never been any resolution of any of my registered concerns. As you know so very well, in the 7 months we have worked to engage the City officials in review and improvement efforts, there has been nothing but resistance.


One overarching reason that we need the help of non-resident voting rights activists is that our voters and residents are indeed intimidated by City Hall. Citizens have just witnessed a 3 month ordeal where able Election Commissioners were dismissed and humiliated because of their advocacy for an election review and desiring independent counsel.  The message was clearly sent to anyone who would encourage more citizen oversight of the election process. Given the unfortunate bias of the press, the voters have very few details about the election problems, and a lot of biased misinformation coming from a very well orchestrated smear campaign.


See my notes below for some particulars.


Please encourage the voting rights groups to redouble their efforts to promote transparency in the Aspen election process.


Marilyn


From: colorado-voter-group-press On Behalf Of Mick Ireland
Sent: Sunday, December 20, 2009 6:10 PM
Subject: Why we don't need yourt help in running our elections and why a recount is not needed

[mrm] signifies a comment by Marilyn Marks

[hhb] signifies a comment by Harvie Branscomb


To the "voting rights community"


There are many of us in Aspen who do not support the intervention of people who do not live here in our elections.  It should be noted that the litigation you ask us to financially support is being funded in part by Ms. Marks, the candidate who lost the election and another unknown part is coming from people who have no direct knowledge of Ms. Marks and her ongoing campaign to discredit the City of Aspen.  It is odd that you claim those who disagree with her are conducting a “smear” campaign, while excusing her tactics as a candidate, which are of record and met with widespread disapproval by the electorate including some of her supporters.


[mrm—As has been previously disclosed, the vast majority of the funding has been from  my personal funds--$20,000+. Other contributors to date all live within 20 miles of downtown Aspen.  I am unaware of any questionable “tactics” Ireland references. If my record as a candidate met with widespread disapproval, that  “disapproval “ is measured in an either 137 or a 177 vote difference between Ireland and myself out of 2544 votes.]


I would be much more impressed if your call for “transparency” included a call for the full disclosure of who and how this litigation is being financed. 


[mrm--I have previously addressed this. While full disclosure should be the “default mode” for such efforts, this is an exception. The history of retribution from elected officials dictates anonymity of contributors.]


Her (ongoing) campaign is, like this lawsuit, funded largely by people who do not live here. 


[mrm--there is no campaign for election and there is no outside funding of any activities other than the current civil litigation in pursuit of transparency.]  


Very few of them are aware that the city attorney has issued an opinion that concluded the state constitution and the state statutes require the ballots be kept secret.


[mrm-- contributors to the litigation fund have been given all court filings, including the opinions of the City attorney, which we believe to be in error.]  


The opinion is well grounded in fact and law and was written by an attorney with more than 30 years of public service.    Local taxpayers will have to pay to defend the lawsuit so that Ms. Marks and her close friend will be able to indulge in a "review" of ballots that amounts to a recount notwithstanding the fact that 200 of the ballots were recounted by hand and agreed 100% with the results of the official machine count.


[mrm--there was no “recount” or “hand count” of those 260 ballots. There was no test of the machine count.]

[hhb—the actual “audit” selected 4 non random sequences of 65 ballots each from 4 precincts,  half of them were used to check mayor contest ballot interpretations and half were used to spot check the council contest interpretations. The two hundred paper ballots were checked by hand comparing to the recorded interpretations. All mail-in and early voting ballots (about 1/3 or the ballots) were excluded from this check  No official audit of the tabulation of the election was done. No audit of the ballot question on the Art Museum was done.  Results of a private check released after the end of the contest period triggered a casual restatement of the already certified vote totals but did not change the outcome.  The explanation for the resistance to multiple open records requests for TIFF digital images of ballots has changed radically since the first request.]


What are the odds that the ballots contain a significant error when not one of the sampled ballots contained an error??  Granted, the sample was not a strictly randomized subset, but the odds of finding 200 ballot with a non systematic selection that have zero errors are pretty small.


[mrm--we are aware of a variety of questionable ballot interpretations which demonstrate the need to make a more thorough review of the intermediate records. All early voting and mail-in ballots were withheld from this interpretation check. It was explained, ironically, that these were not checked because they had possibly been subject to a challenge. There appear to be unusual adjacent duplicate ballots. Some voters report not being able to find a ballot string that matches the way they voted.]


The state has not, contrary to some claims, defined ballots or ballot images as public records open to inspection.  To be sure, the legislature has been asked to do so but has declined.


[hhb- in 2007 the Colorado legislature passed a bill SB-83 which revised election law.  The bill as introduced on behalf of the Colorado Clerks contained a provision to make ballots impossible to request by open records request.  This section was unanimously amended out of the bill before it left the Senate.]



For some reason, it appears that  you and our allies are offended by anonymous comments on a blog kept by the Aspen Times.  Ms. Marks propensity for retaliation is well known and I cannot blame anyone for protecting their identity when criticizing her.  She has told at least two people at the city that their jobs would be in jeopardy when "we get power."  Neither employee wants to be part of that story.


[mrm--that is a vicious fabrication, with no basis in fact. I have attempted multiple times to research this defamatory statement. There is no evidence of this claim. It absolutely did not happen.]


She also called (in an e-mail) for the criminal investigation of a county commissioner who she said used erroneous facts in an election campaign to build affordable housing.


[mrm--another misstatement of facts.] 


Mess with Ms. Marks and chances are she’ll be calling the local district attorney asking for a criminal investigation of your temerity to disagree with her viewpoint.


There doesn't seem to be any sympathy on your part for people like myself who are repeatedly insulted on the same blog with anonymous comments.  Is that OK while comments contrary to your position are per se "invective" and "smears?"


I note that there is yet another story on this service about the 11 ballots undercounted in the unofficial count.  This is old news and had no impact on the official count, which count was not done on the Diebold/Premier machines.  Is this just an attempt to use this forum to solicit funds for the litigation?


[mrm--the official count of the Art Museum question was indeed done on the Diebold machines.]


I know that I am supposed to believe that it is a coincidence that Ms. Marks attorney is a Republican party official in Colorado


[mrm—My attorney, Robert McGuire is not a Republican party official, although if he were, it would in no way impact his work on my behalf.]


and that her treasurer, who violated the Open meetings Act as an election commissioner,


[mrm--these are trumped up, exaggerated allegations which Ireland is promoting]  


once bragged on her service to Karl Rove. Coincidence or not, it feels a lot like a Swift Boating: get the money from undisclosed donors, repeat the lies over and over again until a weary public accepts a distorted version of reality.


[mrm--I wish that the critics would identify the “lies” they reference. I will humbly apologize if I have misstated any facts.]


I have supported fair elections and voter registration reform for years as have many of my friends.  This attempt to discredit the only election in the state that allowed full observation of the count and disclosure of the results of each ballot does not advance your cause.  I doubt if any of us will support legislative efforts by you or Mr. Branscom without questioning what your true agenda is.     

 

Have a nice Christmas and holiday season.


Mick Ireland

920-2858

515 Indepndence Place

Aspen CO 81611


[the following email was attached to Mayor  Mick Ireland's email above. It is a press release from Fair Vote]

From: colorado-voter-group-press On Behalf Of Al Kolwicz
Sent: Sunday, December 20, 2009 4:45 PM
To: colorado-voter-group-press
Subject: PRESS 091220 CO - Premier AccuVote Machines Missed 0.4% of Ballots in Aspen Elections


Premier AccuVote Machines Missed 0.4% of Ballots in Aspen Elections

by Terry Bouricius // Published December 20, 2009


Error’s discovery shows value of redundant ballot-counting methods

On May 5th 2009, Aspen (CO) held municipal elections for mayor, two city council seats and a ballot measure. Pitkin County's Premier (formerly Diebold) AccuVote optical scan voting machines failed to register 11 (0.4%) of 2,544 ballots, which was discovered due to the ballots also being counted on Election Day at a central location with a separate system. Premier is one of the three largest providers of voting equipment in the United States.


Aspen had more voters at its polls than ever before in its history. It was the first election with the city's system of instant runoff voting for electing the mayor and a variation of instant runoff voting (IRV) for city council. In both ranked voting methods, voters were allowed to rank candidates in order of choice. First choices were counted at the polls with Premier's AccuVote system provided by the county, then the full paper ballots were counted at a central location where there was an independent re-scanning of the ballots. This re-scanning uncovered errors in the results reported by the AccuVote machines, and most alarming, revealed the fact that 11 ballots were entirely missed by the AccuVote machines. The ballots were re-scanned using a commercial off-the-shelf scanner as part of an independent system TrueBallot, Inc., employed under its contract with the city to tally the instant runoff voting elections.

The TrueBallot system did not simply record votes and keep running totals for each candidate, but rather captured an actual graphic image of each individual ballot. This redundant record of each individual ballot allowed for a higher level of accuracy in determining voter intent, with apparent over-vote or under-vote ballots being able to be projected onto a screen allowing election judges to rule on voter intent. There is currently a legal battle in Aspen about whether these graphic images are public records that should be made available to the public. FairVote believes the public interest is best served by full election transparency and that the images should be made public.

To underscore the importance of the missing 11 ballots, it is not uncommon for manual recounts of optical scan elections to find new valid votes that were discounted by the optical scan voting machine, either because the machine detected a stray pen mark as an over-vote (voting for more candidates than allowed), or because a voter marked a choice too lightly or outside the designated spot on the ballot, such that the machine detected an under-vote, or skipped race. Such "found" votes are common in manual recounts where humans can recognize a voter's intent that the optical scan machine could not. In the recent Aspen election, the independent scanning of ballots did indeed allow election officials to find at least one such valid vote missed by the AccuVote voting machines.

However, this problem is unrelated to the discovery that nearly a half percent of ballots - 11 ballot cards in all - went entirely unrecorded by the AccuVote machines. According to Aspen City Clerk Kathryn Koch, both the poll book record of the number of voters who voted and the TrueBallot record of ballots processed agree that there were 2,544 ballots. The AccuVote machines, however only recorded 2,533 ballots. These numbers can be calculated from the first round mayoral vote counts from the AccuVote and TrueBallot data on the city web site. We have put them into the following chart.

http://www.aspenpitkin.com/pdfs/depts/38/electionresults09.pdf

Mayoral candidates

AccuVote

TrueBallot

Missed Ballots

Marks

875

877

2

Erspamer

420

421

1

Kole

126

126

0

Ireland

1081

1090

9

Write-ins

14

14

0

Residuals (e.g. skipped race)

17

16

-1

TOTAL

2533

2544

11




According to city clerk Koch and the data from TrueBallot, Inc., the AccuVote voting machine errors came from two different AccuVote voting machine units, designated #4 and #5B. The errors were unrelated to the city's use of instant runoff voting. The voting machines were running in their customary plurality election mode, necessitating the independent re-scanning of ballots to record voters' alternate rankings, which uncovered the AccuVote errors. This means that the same sort of error could have occurred in previous elections in Pitkin County for elections for president, Congress and state offices and could occur again, unless the source of the errors is identified and fixed.

The only other known independent re-scanning of ballots cast using Premier AccuVote machines occurred in Humboldt County, California in conjunction with three recent elections. The independent scanning was done by the Humboldt County Election Transparency Project (http://humtp.com/page3.html) authorized by Registrar of Voters Carolyn Crnich. It is troubling to note that in November 2008 the re-scan uncovered a serious error. The independent re-scan discovered 197 ballots that went unreported by the version of the Premier GEMS ballot upload program in use, and were thus missing from the certified election results.

Fortunately for Aspen, the official results of the election were the TrueBallot results, not the Premier results that were missing 11 ballots. The post-election manual audit of a random selection of 10% of the ballots confirmed that the TrueBallot system accurately recorded the votes. (http://www.aspentimes.com/article/20090508/NEWS/905089992)

Recommendations for Aspen:

Aspen immediately should undertake a detailed investigation to identify the source of the errors. This investigation may include interviewing poll workers associated with machines #4 and #5B to learn if there were any unusual events or lapses of proper procedures. For example, are they certain all of the ballots actually went through the tabulators? Could some poll workers have put some kicked-back ballots (that were wrinkled, or mis-marked) directly into the "emergency" side slot of the ballot box (that exists in case of power failures, etc.) and thus did not pass through the tabulator? If this possible error was combined with a second error when the ballots were removed after the close of polls, such that nobody noticed these 11 ballots were in the special compartment of the ballot box for un-scanned ballots, this could explain the error.

If the scenario above is ruled out, it is recommended that representatives from Premier and the testing laboratory that passed this AccuVote model be asked to explain how such an error could occur. Machines #4 and #5B should be secured and computer forensic experts should be employed by the Colorado Secretary of State to attempt to identify the source of the errors.

As to the matter of public release of the ballot images, we believe the city of Aspen should release these records, just as it has previously released all of the ballot data derived from the images. This was the practice in Humboldt County (Humboldt County election ballots can be found online at http://earc.berkeley.edu/hosting.php). The remote risk that voters might in the future be solicited to sell their votes and make identifying marks on their ballots is not relevant to the already completed election and unconvincing as to future elections, as making any identifying mark on a ballot is already illegal under existing state law (1-13-712: disclosing or identifying vote). If there is still concern, as with other states, Colorado statutes should probably be amended to clearly state that ballots with identifying marks are defective and invalid.

Broader Policy Recommendations:

Since both U.S. elections that have been tallied or audited in a transparent manner by scanning with commercial off-the-shelf scanners have proven to be more accurate than results reported by proprietary voting equipment, the fundamental assumption that vote tabulations should be conducted by non-transparent proprietary means should be questioned. The value for election integrity of having redundant records of each individual ballot (both paper and machine) rather than merely running totals from proprietary voting machines is evident. Colorado should require that voting machines purchased after 2010 record individual ballot records showing each voter's choices, rather than merely keeping running totals and establish manual audits of a statistically appropriate random sample of all ballots.

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