-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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Friday, March 12, 2010

Letter to Aspen City Council regarding Dismissal of Marks v. Koch and attached letter to editor

The printed version of the March 12 2010 letter to the editor of the Aspen Daily News by Harvie Branscomb is available on line here:  http://www.aspendailynews.com/section/letter-editor/139658

It was re-titled "Ballots brouhaha" by the paper.

Here below the break is an extended cover letter to the Aspen City Council containing a copy of the letter as submitted:

-------- Original Message --------
Subject:LTE - Incredible Disappearing Ballot Images
Date:Fri, 12 Mar 2010 02:28:42 -0700
From: Harvie Branscomb 
To:'Mick Ireland' , 'Torre' , 'Derek Johnson', 'Steve Skadron' , 'Dwayne Romero', 'Kathryn Koch' 
CC:,, "'Rick Carroll'" , "'Scott Condon'" , "'Mitzi Rapkin'" ,, "'Bernie Buescher'", "'Bill Hobbs'" , "'Judd Choate'" , "'Stephanie Cegielski'" , "'Wayne Munster'", "'Representative Nancy Todd'",,, "'Kathleen Curry'" , "'Jim True'"

To Aspen City Council:

I wrote the following letter to editor on the topic of ballot images and your approach to them.  Apparently it will appear in the Friday newspaper.  This will serve as your advance copy. 

Note that I have previously sent to Aspen Special Counsel Jim True and  to the Aspen Election Commission a list of serious questions which I feel ought to be answered, sooner or later by someone, about election related issues. That list was sent by email and by physical letter.  As far as I can tell,  the city’s attorney has chosen not to reply  to my letter although the first half of the questions were also posed in the newspaper some time ago. (http://aspenelectionreview.blogspot.com/2010/02/questions-mailed-to-aspen-special.html )  Special Counsel Jim True did write a letter to editor in response offering to accept questions but saying he would not reply to questions by newspaper.  I am waiting for him to reply by some other means.

It could have been that Marilyn Marks’ law suit (http://aspenelectionreview.blogspot.com/2010/03/judge-dismisses-marks-v-koch-case-aspen.html ) would have helped to answer some of the open questions but as of yesterday even the process of discovery of facts seems to have either ended or been delayed by many months with the dismissal of the case. For those not familiar, Marks v. Koch was pursuing transparency of existing scanned TIFF files of the Aspen May 5 2009 IRV election through appeal of a CORA rejection by the city.     There are those who prefer to characterize the Marks v. Koch suit as the product of sour grapes or worse, but that is simply a divisive and ill-informed claim and not in any way matching reality. Even if suspicions of Marilyn’s motivation were somehow valid, her effort in the court isn’t trivial or unimportant.   One of the city attorneys is quoted by a local paper today in a similar vein as if there was no constructive point to Marilyn’s suit.  (http://www.aspendailynews.com/section/home/139619 )  The fact is that Aspen has jumped headfirst into the front lines of election policy debate with its several pioneering decisions on voting procedure, most of which I think were admirable and beneficial: single ballot audit ability, access to ballot data, rank choice voting, etc. Considering that,  I find it shocking how much effort has been recently applied to try to curtail further debate which would illuminate us on how Colorado law works in this new electoral territory or fails to do so.   Someone is trying to block the transparency of the discussion on transparency.  What?

This election transparency topic isn’t going away, not even by the sudden dismissal of the case.  Much resistance has been mounted to end the discussion- resistance in the form of motions to dismiss, motions to block depositions, etc..  Today would have been the day that TrueBallot, the election tabulation contractor, would be answering questions on the public record, but for the last minute termination of the Marks v. Koch case. This dismissal follows huge amounts of painstaking research and preparation to make many effective arguments for transparency and tens of thousands of dollars in legal time consumed in doing so. And all that followed hundreds of hours of attempts to communicate and resolve issues by other less costly and more reasonable means including through the Aspen City Council and Election Commission.  The two citizen volunteer members of this commission  were, as I now understand it, retroactively told their terms had ended months before  after they asked about their role and responsibility upon receiving requests for action from Marilyn Marks, myself and at least one other person.   The way I see it you, City Council, chose to creatively reassemble your Election Commission in a process which doesn’t stand up to close scrutiny.  If I am wrong anywhere here, please explain it to me. I think this is already one of the unanswered questions posed in my letter to Special Counsel Jim True.

The court became the only available route to discuss the issue of Aspen’s election transparency, after the approach to the City Council and the Election Commission became futile.  Even the Secretary of State’s office reported that it has no jurisdiction over municipal elections, a fact which the Colorado Legislature seems to have overlooked in writing recent law about IRV (instant runoff voting).  

While researching Aspen’s election for my election review project, I discovered that Title 31, the municipal code, and Title 1, covering most other elections, are in stark contrast on the topic of ballot preservation/destruction. City Clerk Kathryn Koch works under one body of law, and County Clerk Janice Vos Caudill under something completely different. Who would have expected so much inconsistency on this important topic?  After researching Colorado’s election law history at the DU law library, I now understand why this is.  A 1946 constitutional amendment reversed a policy of marking ballots with a number also found in the poll book which would identify the voter, replacing an identifiable ballot with the very different policy of a constitutionally guaranteed anonymous ballot.  In the previous identifiable-ballot scheme, it was necessary to keep ballots in a manner “so that no one can ascertain how any voter may have voted,” and reasonable to destroy them at 6 months for the same reason.   After 1946 with an anonymous ballot, the new Title 1 for statewide, legislative district, and county elections was written to require preservation of ballots for at least 25 months and no destruction required.  Meanwhile, Title 31 for municipalities remained relatively untouched from pre-1946 law even though the identify-ability of the ballot had changed drastically. 

The requirement for an anonymous ballot was a huge boon for transparency- allowing the storage and handling of ballots for recounts and audits without concern over revealing identifiable individual votes.  But Title 31 still doesn’t seem to allow any handling of ballots after they are tabulated other than in court.  More recent technological developments have made scanned ballot images a reality, making further transparency possible and practical.  TrueBallot is one of the proud pioneers of this new opportunity, and it is admirable that Aspen chose to give its voters the chance to take advantage of TrueBallot’s public production of ballot images  although more time and better testing was needed and Aspen decided to prevent TrueBallot from completing their advertised transparent approach. 

The very good question the court will for the moment avoid facing is: are these scanned ballot images “other election records” or are they ballots?  Then the other, larger question: is transparency of ballot images in the public interest?  Humboldt County California Clerk and Registrar of Voters Carolyn Crnich who has published about 35,000 ballot images on-line in the last November election and has handled four elections this way had been planning to come to Aspen on March 22 to testify as an expert witness. She sounds more than satisfied with the results of the Humboldt Election Transparency Project.  ( http://www.humetp.org ). One result of the project was the discovery of a significant flaw in Premier (Diebold) software.

My message is relatively simple- it is the transparency which matters to the public- whether the really interested parties are counted on only one hand or on thousands.  Aspen’s pre-election stance pressing for maximum transparency was the admirable one.  Has that changed?

On a side topic, I hope that the dark period of hateful or just derogatory personal remarks about Marilyn Marks will soon end just as I also hope that any hateful personal remarks about members of City Council  will also end.  It doesn’t matter at all how different Marilyn’s politics might be. She deserves to be respected for making the attempt to see the transparency realized that Aspen so loudly proclaimed as a goal. Too many of the derogatory statements I have heard recently made against her are patently untrue.  I am not accusing anyone on this council, but the evidence for opportunistic demonization by people in our valley is out there for everyone to see- a product of mindless extrapolation of imagined-to-be  insoluble partisan differences. Election reform is almost entirely non-partisan.  Election transparency reform is certainly non-partisan.

The intensity of the injustice and level of misunderstanding I have encountered since voluntarily meeting with Marilyn Marks after the election has distracted me from other pursuits.  The dismissal of the case yesterday will not deter me from trying to understand and to counter that misunderstanding to the extent of my ability.

There is one more letter I have written on this topic for publication. I will try to send it to the City Council before it is published, if that becomes possible. Please refer to http://aspenelectionreview.blogspot.com where I have posted a copy of that letter, and archived the Marks v. Koch filings and ruling, in some cases with links to the cited statutes. You will also find links to the over 100 articles on the historic Aspen May 5, 2009 election.

I apologize for my part in expending your time to the extent that you think it could have been spent on something more productive. I myself don’t know of anything more important. 

Harvie Branscomb

From: Troy Hooper [mailto:hoop -at- aspendailynews.com]
Sent: Thursday, March 11, 2010 7:36 PM
To: Harvie Branscomb; Catherine Lutz
Subject: Re: LTE Incredible Disappearing Ballot Images

Harvie. I received all your emails and already made the corrections. Your letter is running tomorrow.

Troy Hooper
Aspen Daily News
970-925-2220 ext. 216
Incredible Disappearing Ballot ImagesDear Editor:

Why has the city been so aggressively holding back anonymous May 5th  images of ballots?

A year ago, when Marilyn Marks and a few others were complaining about IRV and concerned about minimal testing of an uncertified voting system, City Hall repeatedly assured that the public would see “total transparency,” and robust testing.  Those excellent promises were only partially fulfilled.

The mayor asserted before the election: “this process will be transparent because we will get to see all the ballots as counted.”  “One of the things that created confidence in Minnesota was that they actually showed ballots being counted.” (Feb. 2, ‘09)

On election-day, candidate Marilyn Marks asked officials how to obtain a copy of the ballot images which would be displayed that evening on large screens.  The city gave no indication that election night’s projections would be the first and last chance to observe all ballot images. We later learned the May 7 limited public “audit” of 260 ballots was the end of promised “total transparency” of the ballots.  At that point all ballots plus images were locked away, other than the few hundred captured on GRTV recordings.

Shortly after Marilyn’s reasonable CORA request to inspect images for process improvement, strong voices for transparency suffered a dramatic and unsettling shift. The city thereafter claimed that to repeat their previous disclosure of ballot images, anonymous by law, would cause significant harm to the public interest.  Confused?

Ireland: ”I thought we were not going to disclose the ballots. It is detrimental, and [will] cast doubt on the election.” “When you go vote, the presumption is that no one is going to look at your ballot.” “In 100 years no one has ever felt the need to go look at the ballots.” (Aug. 10, ‘09)

Romero: “Disclosing ballots would be a breach of public faith.” “Public had a fair expectation that there would be no such activity.” (Aug. 10 ‘09)

Skadron: “In no way could I find myself permitting disclosure of those ballot images. I find it absolutely wrong.” (Aug. 10, ‘09)

How did proclaimed public benefits of “see-and-count-for-yourself-ballots” morph into claims that disclosure does significant public injury? Is “public disclosure” a good idea only so long as the images flash by so fast that no one can analyze their contents?

The court has now simply dismissed Marks’ case for transparency two days prior to receiving the results of a deposition planned for March 12 and the anticipated hearing of extensively prepared arguments on March 22.  Dazed and confused?  Follow the Aspen election coverage here:http://aspenelectionreview.blogspot.com  

Harvie Branscomb
El Jebel

1 comment:

Mary C. Eberle said...

Dear Harvie,

I am sure that I speak for the Coloradans for Voting Integrity Board in telling you that your efforts with regard to the May 5, 2009, Aspen election have been extraordinary. The message you wrote here is invaluable as a record of who has been involved and what questions remain to be answered. I have heard that an appeal will go forward--bravo on that!

In the midst of the Aspen situation, you have also defended using precincts during the primary election for Eagle County. Though the forces of Eagle County Clerk Simonton and the county commissioners prevailed, your work has inspired us in Boulder County to develop a broad-based strategy to try to maintain our precincts here in August. If we are successful, we will owe much of that success to your hard work.

Thank you, on behalf of the Board and--dare I say--all Coloradans, whether they "get it" or not.


Mary C. Eberle, President
Coloradans for Voting Integrity