-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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Thursday, April 29, 2010

Election Commission to Hear Zimet Complaint Alleging Unconstiutional Election

Millard Zimet updated his complaint on the alleged unconstitutional nature of the May election, because of the lack of voter anonymity.
The complaint will be heard by the Election Commission on May 5 at 3:30 p.m. in a City meeting room.

The complaint update details how he determined Mayor Mick Ireland’s likely voting data from cast vote records improperly collected in order of poll book entries, and then  publicly released by the city. (the ballots were not shuffled, nor were the ballot image files, before being scanned or released.)

Mayor Ireland declared Zimet’s complaint to be of “no substance,” and that the Commission has “nothing to act on.”
The meeting will surely be interesting. The legal advice will apparently be offered by the City Attorneys who helped design this system and did not require the randomizing of ballot records. Additionally they represent the elected officials.

His complaint update as of 4.29.10 is posted at:
The original and 1st update of the complaint are

Thursday, April 22, 2010

City View of Aspen Election Commission Role and Responsibilities Finally Disclosed

On April 21, 2010, five months after this  confidential memo was written for City Council, the City Attoney's views of the Election Commission's authority and appropriate roles was made public. One wonders why  this document wasn’t always public.
 In February the City asked for applicants for the new Election Commission, but would not disclose  the City’s view of  what their duties or level of authority would be. It should be noted that this memo was written as a confidential document for City Council at the time that the former Election Commission was under fire by Jack Johnson and some Council members on trumped up charges, after the EC began to explore their duties and discuss the outstanding election irregularities.
 Shortly after this memo was written, the Council declared the Election Commission to be retroactively terminated. I believe that the Council did not like the breadth of authority that the Election Commission held to review and control the process of elections in accordance with state and local law. They had to be dismissed so that the CC could avoid having them follow through on their  interest in independent reviews and audits, and a clear definition of their roles.
(comment by Marilyn Marks)

Harvie Branscomb comments on news about Aspen Election Commission

From: Harvie Branscomb
Sent: Thursday, April 22, 2010 10:21 AM
To: Curtis Wackerle (Aspen Daily News reporter)
Cc: Marilyn R Marks; Al Kolwicz; Ward Hauenstein; Bob Leatherman;  Jim True; John Worcester; Kathryn Koch; Harvie Branscomb
Subject: Re: May 8 deadline
(referenced article : http://www.aspendailynews.com/section/home/140270 )

I realized after reading your well written article that I might have misled you slightly. The lock the key was left in unlocks a small door on the ballot box that allows access to two buttons that if simultaneously pressed will activate the override function that causes the voting machine to accept any ballot with any number of errors on it. My research shows that use of this function can lead to misinterpreted ballots.

I'm not sure you understand that the "ballot box" is the stand that holds up the voting machine. The ballots fall from the voting machine into the box. There are several locks on the box/stand that are opened by the same keys as Kathryn Koch confirmed at the second election commission meeting. Two of the locks open doors that allow access to storage areas for voted ballots. I don't think your article is written in a manner that will confuse and I don't think it needs any correction. I am only explaining this to you in case someone objects on technical grounds. No doubt Kathryn Koch will correct me if I am wrong. It is odd that the Mayor brought up this canard again at the end of the Monday night CC/EC meeting.

I think you listed two of the most easy to understand (and to resolve) issues. That was appropriate. Your readership will relate to those and perhaps they will remember other similar problems to report and come forward. You might have noted that the EC would like to hear about positive qualities of the election too. I plan to offer a number of those in my comments.
But I also want to point out four other issues that simply overshadow the procedural problems on or around election day.

Wednesday, April 21, 2010

Provocative bill to take Colorado to a universal mail-in ballot will not be introduced

Colorado Secretary of State Bernie Buescher speaking to the newly appointed Best Practices and Vision Commission just announced that the 69 page bill being prepared for late introduction to take the state to a universal mail-in ballot with "service centers" and election day registration will not be introduced this year.  The Best Practices group (citizens, clerks, legislators and representatives of parties) will consider this among other issues. It's first meeting was today.  One of the interesting revelations of the first discussion was to note that most municipalities do not check signatures on mail-in ballots (and are not required to do so).

The following press release (after the break)  from the Colorado Secretary of State is misleading. It offers a false alternative- between "touch screens in polling centers" and "mail ballots fed through high speed scanners".  Neither of these is technically necessary in a traditional polling place counted election. In fact both of these are the same two limited choices that would have been forced on voters as a result of the "Modernization Bill" that will not be introduced this year.  The real choice (still available to many voters in Colorado) is between paper ballots counted in precinct polling places using reliable paper poll books, and on the other hand vote centers or service centers dependent on electronic pollbooks and functional networks and high tech centralized facilities for counting paper ballots requiring moving ballots to where they are counted (either from precincts or by mail).

The conversation about mail ballots has not exposed the deleterious effects it has on citizen oversight. Too often the discussion is framed in a promotional manner.

The Secretary of State did express a set of goals for the Best Practices and Vision Commission that features accuracy high on the list and does not mention convenience or cost.  If he meant to place convenience and cost at a lower priority than accuracy of counting and eligibility then I compliment him on setting goals properly.  Watch the Secretary of State's website for audio recordings from these meetings: www.sos.state.co.us/pubs/pressrel/PR20100319Members.htm

Sunday, April 18, 2010

Email by Marilyn Marks to Election Commissioners concerning 2nd meeting: Aspen Election Commission

[April 18 2010 email from Marilyn Marks to two volunteer Aspen Election Commissioners regarding 2nd meeting of 2010 Aspen Election Commission. More comments on the meeting are found here: http://aspenelectionreview.blogspot.com/2010/04/second-meeting-of-aspen-2010-election.html]

Bob and Ward,
I had the opportunity to listen to an audio recording of the most recent meeting.
I am pleased that so many topics were candidly discussed. Thank you for doing that.
I look forward to participating in future meetings.

It sounded as if I am requested to make a list of my concerns about the May 2009 election and submit those to the EC, although I have not heard this other than by listening to the tape. I will certainly do this. I am assuming that your request is for me to have that submitted by May 8th?

I did hear a few topics where I feel that there is some confusion or lack of clarity of the history:

1.    I believe that Elizabeth clarified this, but my litigation has nothing at all to do with IRV, although that seems to be a common misunderstanding. My litigation is ONLY focused on ensuring that public records of ballot images are accessible by the public. That needs to be true throughout the state of Colorado whether we are dealing with  IRV TrueBallot created images or images created in traditional elections with the Hart BallotNow system.

2.    Millard’s complaint is a most serious complaint (far more serious than any of mine!), and  needs to be candidly discussed and the implications fully understood. I was concerned to hear that it was initially passed off as “IRV related,” and toward the end of the meeting, as not important unless IRV is used again.  Millard’s complaint has to do with a constitutional issue cloud that will hang over the City for at least 3 more years. The problem is not solved by “shuffling next time.”  While that is crucial, what is the remedy, or at least the acknowledgement of the problem that the community needs to be aware of? In my view, that is a philosophical matter that merits a full and candid discussion, not to be shied away from because it is uncomfortable. 

Criticism of Caleb Kleppner Guest Editorial in Aspen Times Sept. 17, 2009: Aspen Election Transparency

This is an email written by Harvie Branscomb to Caleb Kleppner of True Ballot Inc. Sept. 17th, 2009 in response to a guest editorial written by Kleppner for the Aspen Times.  This email was not responded to in written form but there was a telephone conversation between Caleb Kleppner and Harvie Branscomb. This email, critical of the Caleb Kleppner's op-ed statement,  corresponds to the recent email of Marilyn Marks to members of the Aspen Election Commission linked here: http://aspenelectionreview.blogspot.com/2010/04/city-of-aspen-trueballot-inc.html

An open records request was filed to learn about city cooperation in the writing of this op-ed.  The result is found in the form of a pdf by clicking here .  On the pdf you will find Marilyn Marks Sept. 17, 2009 criticism of the op-ed as well as an email from Caleb Kleppner to Aspen City Clerk Kathryn Koch offering to cooperate on writing the op-ed and also a submission of a draft to Kathryn Koch for edits or modifications.
[above is by Harvie Branscomb]


You have taken the salesman’s route of promoting transparency in Aspen, which is my agenda too, but you have rested your case on some misconceptions about the election which force me to argue with you.  I am sorry you did that, because I want to support the transparency of True Ballot’s system regardless of the election method. Unfortunately by glossing over facts as you (and the City of Aspen) have done, the public does not get a clear picture of what took place and where it needs to be improved.  I have been circumspect in my criticisms of the Aspen election, but this new publication forces me to expose additional details as I know them to the public.

Here are the line by line exceptions I have to your editorial. Please give me your rebuttal ASAP. As a first hand observer, I will rely on your corrections of my statements where your corrections are definitive from  your first hand experience.

(original guest editorial from the Aspen Times, interspersed with commentary by Harvie Branscomb in yellow.)

Caleb Kleppner
Special to The Aspen Times
Some recent commentary on the instant runoff (IRV) election has distorted the facts and missed the big picture about Aspen's May election.

HB>; Caleb, you are correct, and this editorial of yours is an example of that, unfortunately.  This letter will seek to elaborate on your distortions. I think perhaps you are correct about the big picture, but this picture must not be founded upon mistaken facts.

Discussion of ballot text for possible future Aspen voting methods for November ballot question: Aspen Election

A discussion and questions about the presentation of voting methods for future Aspen elections on the ballot for the November coordinated election.

From: Harvie Branscomb [mailto:harvie@media.mit.edu]
Sent: Friday, April 16, 2010 1:36 AM
To: 'Mick Ireland', Aspen City Council, Aspen Election Commission
Subject: deciding the method of voting

Several voting systems will be identified to be placed on the ballot.  One of them will be similar or same as the IRV used in 2009.
Another one is likely to be plurality/winner takes all, no majority required
Another one is likely to be vote for one, majority required, runoff if necessary (or vote for 2 if CC)
Another one could be e.g. approval voting (each candidate can receive one vote per voter, voter votes for as many as preferred, majority required, runoff likelihood reduced
Another could be e.g. district or party primary, followed by general election, etc.

Will the IRV choice be represented by exactly what was done in 2009 or by an improved description? This seems to be a key question. I now think that calling rank choice voting “IRV” is a mistake.  I now see it as “RRV” or reduced runoff voting- a system that makes runoffs much less likely but would call for a runoff in case a true majority of ballots was not achieved by the winner(s) of the rank choice vote.

Friday, April 16, 2010

Aspen response to Marks' response to Aspen's motion for attorney's fees: Aspen Transparency Litigation

On April 16, 2010 the City of Aspen filed this brief to support the argument that plaintiff Marilyn Marks should pay a total of over $67,000 in legal fees calculated at a rate of $385/hr, although city attorneys are paid far less than that. This motion is allowed by the decision of the court to dismiss the case, although that dismissal took place months after the motion was filed and only two days before a critical deposition was to be taken and two weeks before the hearing date where evidence would have been heard. 

Here we see Aspen arguing that although it failed to follow one of the court rules it had some reason not to be aware of the rule.  We then see the city argue that the Marks case is frivolous and vexatious- largely referring to the existing record in the case and claiming, again, that Marks' recent pleading,  that shows the uncertainty of the accuracy of representation of the paper ballot by the TIFF image, "is again an effort to change the facts to avoid attorneys’ fees, to avoid the dismissal, or to challenge the election."
[above is opinion by Harvie Branscomb] 

Click here for a pdf copy of Defendant's Exhibit B (Court transcript from Jan. 28 2010)


Thursday, April 15, 2010

TrueBallot certifies Aspen May 5, 2009 election "fair and accurate" on April 12, 2010

The following was produced as a response to a Colorado Open Records request for the certification called for in the agreement between TrueBallot, Inc. and the City of Aspen.   The contract, signed by the City Clerk on April 23, 2009  states that "upon completion of the tabulation of the ballot, TBI and/or John Seibel, Esq. shall, if no substantial irregularity has occurred, certify the ballot as fair and accurate."  The original contract in pdf form can be found by clicking here.  The open records request was sent on April 8 2010 and the following letter was written on April 12, 2010.

TrueBallot, Inc
Election Services & Solutions
3 Bethesda Metro Center
Suite 700
Bethesda, Maryland 20814
(301) 656-9500
FAX (301) 656-3558

John L. Seibel

April 12, 2010

Kathryn Koch
City Hall
130 S. Galena St.
Aspen, CO 81611

Dear Ms. Koch:

I believed that we provided a certification of the May, 2009 Aspen City election at the time of the election when all of the election data was presented.  However, in the event that certification was not provided, please accept as this letter as certification that the tabulation of the ballots in May, 2009 Aspen city election as presented on May 5, 2009 and subsequently amended to correct an insubstantial error in the final tabulation of the results in the Mayor's race, were fair and accurate.

TrueBallot, Inc

John L. Seibel, President

City of Aspen &TrueBallot Inc. Misrepresentations and False Statements Concerning Aspen Election Transparency

(I wrote the following email to the new Election Commission asking for their review of the false claims and  misinformation which the City of Aspen has helped to promote about the May election.) Marilyn Marks
[this posting contains opinion by both  Caleb Kleppner and Marilyn Marks]

From: Marilyn R Marks
Sent: Saturday, April 17, 2010 2:59 PM
To: 'Ward Hauenstein'; Bob Leatherman.
Cc: 'Elizabeth Milias'; 'Harvie Branscomb'; 'Millard Zimet'

Subject: City Complicity in Misinformation campaign and request of new Election Commission

Bob and Ward,
I had to retrieve the attached  [following] document for my litigation, and as I reread it, I thought that it was a good example, without too many technicalities, of the cultural issue I mentioned in my last email to you. See the guest editorial printed in the Aspen Times on September 17, which I have attached with my footnotes of the numerous misrepresentations.

This almost completely false editorial written by True Ballot executive, Caleb Kleppner, was written with the apparent approval and involvement of City officials. Kleppner delivered a draft for review to Kathryn Koch on September 2 for her approval.

The City staff knew or had reason to know that these statements are materially misleading, and did not attempt to stop them from being printed. The city’s vendor TBI knew these statements to be false as well.

Upon the publication of the editorial, I made my objections known to the City and to True Ballot. Harvie Branscomb wrote to TrueBallot asking for corrections as well.

Both organizations refused to publicly correct the clear misrepresentations, although they made no claims to us that their statements were correct as written.

This is the type of information battle we have had to attempt to combat. But only through the small efforts of letters to the editor. Note that this was published at the approximate time of the prior Election Commission being denied access to independent counsel. Given the kind of misrepresentations in this document, the need for independent perspective is surely quite clear.

The previous election Commission is criticized for not seeking an additional written view of their duties from City staff who, by this time had shown their complicity with the efforts to misinform and mislead. Also, there was an obvious and inherent conflict of interest by city attorneys wrote and opined on the election procedures and acted as one of the judges for certifying the election. It would have been improper for the EC to ask clearly conflicted attorneys to opine on the EC roles and responsibilities, given the state of the election irregularities.

I am requesting that you review this document with staff and ask that a correcting published document be written and submitted to the Aspen Times. To leave such false information and misrepresentations in the public record is disingenuous and self-serving at best. It is most certainly irresponsible.

I see it as part of the duty of the election commission to clear up misinformation from the past and help the information flow to the public.

Thank you for your service.
Marilyn Marks

(Caleb Kleppner submitted a draft of this editorial to Kathryn Koch on September 2 for approval prior to publication)
Aspen Times
Thursday, September 17, 2009

Wednesday, April 14, 2010

Marks' reply to Aspen regarding motion to reconsider: Aspen Election Transparency

On April 13, The attorney for Marilyn Marks filed a response to the City of Aspen response to her motion to reconsider. The text of the response is below the break and follows Marilyn Marks' comments written to accompany the filing as provided to the Aspen Election Commission.

The original pdf of the filing is available by clicking here.

The filing argues that 1) Colorado law does not allow the presumption that ballots cease to be anonymous once they are voted; 2) the TIFF files are not “ballots,” and they should not be treated as “ballots” for purposes of municipal statutes; 3) contests are not the only circumstance in which municipal statute allows ballots to be removed from the ballot box; 4) “substantial compliance” is the appropriate standard for the Defendant to observe in performing her duties under Title 31, and allowing an open records law inspection of the TIFF files is consistent with substantial compliance; and 5) the Court’s review of the legislative history of the municipal law is particularly appropriate in view of the Court’s decision to interpret the term, “ballots,” to include the TIFF files.

Link to previous filings in the Marks v. Koch Aspen Election Transparency Litigation:

Tuesday, April 13, 2010

Second Meeting of Aspen 2010 Election Commission- comments

At 3PM on Thursday April 8, 2010 the Aspen Election Commission met with 5 people in attendance- two of them the Aspen City Attorneys and other others being Jack Johnson (ex-City Council and currently a candidate for County Commissioner), Elizabeth Milias (ex-Aspen Election Commission) and Harvie Branscomb (Eagle County Canvass Board and editor of this blog).

The meeting was very calm and reasonable and productive.  The Commission decided to take in written complaints/compliments/suggestions by May 8 and looks like it will have a public brainstorming session sometime after that. The Commission primarily discussed how it would interface with the public, how it might help avoid any retribution for coming forward with complaints, and whether or not it would weigh in on the method of IRV voting or the choice of voting methods. Apparently one conclusion was to wait for a determination of what voting system would be used in the next election before further discussing IRV related details, but in the mean time to ask citizens to come forward with comments.

[Here are comments on the meeting by Elizabeth Milias, followed by an email sent by Harvie Branscomb to the Commission following the meeting.]

I found the following to be interesting points made at yesterday's meeting of Aspen's Election Commission:

• The "confidential memo" that outlines the EC's roles and responsibilities (as prepared by City Attorney John Worcester) remains confidential and privileged. The EC has received a copy, but its contents are not yet available to the public. It is up to Council to release this document to the public.

• The EC has determined that its individual members can have private meetings with citizens who wish to discuss election issues.

• The EC recognizes that there exists the potential for reprisals against citizens who bring forth election complaints and challenges, but the commission will not be part of this behavior.

• Citizens are welcome to write, call, present to, and lobby EC members regarding election issues, and despite Marilyn Marks being deemed "corrupt" for doing just this following the May 2009 election, this is now ok.

Wednesday, April 7, 2010


(the character of the process of voting interacts with the character of the produced record -these combine to produce election integrity while allowing full records transparency)



Not Anonymous but Private

Example: Ballot with a serial number that can be tied to the poll book number. Ballot is voted in private (no one watching). Someone with access to poll book and ballot can learn how the voter votes. Was legal in Colorado until 1946, now illegal.

Ex: Ballot marked by voter to identify own ballot  (illegal)

Anonymous and Private

Example: A ballot marked in private. No voluntary or involuntary identifying marks.
(A proper and legal ballot.)

Ballot may be viewed by the public; images of ballots may be given to the public without sacrificing the privacy of the vote. Allows full public verifiability of an election.


Not Anonymous and Not Private

Ex: Ballot with a serial number tied to the pollbook marked within view of a poll worker. (illegal)

Ex: Ballot purposely marked with voter’s initials while candidate looks on. (illegal)

Anonymous but Not Private

Ex. Ballot with no identifying marks, but poll worker watches the voter marking his ballot. (illegal)

Ex: Voting in clerk’s office with no privacy booth, where other voters or candidates can watch. (illegal)

Memorandum in Opposition to Motion to Amend Judgment- Aspen Transparency Litigation- April 6 2010

link to previous filings in this case: http://aspenelectionreview.blogspot.com/2010/03/marks-v-koch-plaintiff-files-for.html

Download the pdf of the filing by clicking here, or read it below the break and below the comments.

Submitted comments by Mike LaBonte,  a Massachusetts citizen election official, Al Kolwicz of Colorado Voter Group, and Harvie Branscomb (editor of this blog).

What’s being hidden, and why? (Letter to Editor by Al Kolwicz) Aspen Transparency Litigation

What’s being hidden, and why?

Does anybody know why the City of Aspen is fighting so desperately to prevent public review of the May 2009 election files?

Is there something within the computer files that if disclosed could embarrass City officials?  If so, City resources shouldn’t be used to protect these officials.

Are officials misusing the powers of government for political purposes?  Are they intending to crush anyone who opposes their objectives?

Let’s think about it.  The City has refused a second public viewing of scans of ballots.  Nowhere in Colorado’s Constitution or Open Records Act, or Colorado’s election law or Aspen municipal codes, are officials exempt from producing these files (not the ballots) in response to an Open Records request.  Yet Aspen has refused every such request.

Tuesday, April 6, 2010

conversations with the new Election Commissioners- Aspen Election Citizen Oversight

[email by Harvie Branscomb to Aspen Election Commissioners April 7, 2010- three other messages to the EC follow, all after the break]
--response received from Bob Leatherman, Commissioner--
Your email is acknowledged and has been read. Thank you for taking the time to put it together. Leatherman
Kathryn, Bob and Ward,
Sorry I couldn’t  attend the organizational meeting of the Election Commission.  I will try to attend tomorrow’s meeting.  I am an unpaid citizen volunteer who has spent almost full time working on the aftermath of the historic Aspen single ballot audit-able election since May 12 2009 (Note that the fact that it was IRV is of relatively less interest to me).
I have served many times as Canvass Board Member for Eagle County Elections.   I have great hopes that some of the serious advantages of your May 5 2009  election, as well as most of the deficiencies, particularly in the public process and documentation areas,  will be addressed with your appointment.  Clearly the previous Election Commission did not and probably was not allowed to serve the public with a reasonable process. I hope you will take steps to make sure that does not happen to your election commission, even though it has been appointed under similar circumstances, contrary to the terms of the Aspen Charter. One hopes that this does not mean you will have to operate on tip-toes to avoid stepping on someone’s idea of politically correct.

Saturday, April 3, 2010

Aspen Daily News and Aspen Times polls regarding Marilyn Marks' transparency suit

Here is the Aspen Times poll as of April 3, 2010:

Which side would you like to see prevail in the ongoing legal wrangling over Aspen’s election ballots?
The city of Aspen  
Marilyn Marks  
Who cares?  
407 votes
 Aspen Daily News poll:

Should the city of Aspen seek to recoup more than $50,000 from Marilyn Marks after her suit against the city was thrown out?

Yes  64% (242 votes)
No   36% (134 votes)
Total votes: 376

Above are the poll results as of April 3 2010. The live poll can be found at this link:  http://www.aspendailynews.com/poll/should-city-aspen-se

Friday, April 2, 2010

Site Navigation by Timeline - Use this article to enter this site through links to a list of events

Timeline for Aspen Election Review:  (updated 3/24/2010)
 [ this document will be frequently updated with both new events and older materials which have not yet been linked]

Letter by Millard Zimet to Aspen Election Commissioners -

1315 Mountain View Drive
Aspen, CO 81611
millard [at] sopris [dot] net

Via Email:
Kathryn Koch
Ward Hauenstein
Robert Leatherman

April 2, 2010

Dear Aspen Election Commissioners:

I’m sorry I was out of town for your meeting held earlier this week.  I’m writing to introduce myself to the new Election Commission members, and to briefly explain the issues that have concerned me arising from the May 2009 election.

My initial concern was whether other people could tell how I voted. The Colorado Constitution requires secret ballot elections, and living in a small town I want to make sure my voting choices remain anonymous. My concern was heightened when I learned that the City of Aspen had not shuffled the ballots and had publicly released both the precinct logs (showing the names and order of the voters as they signed in at each precinct) and the strings generated from the ballot scans (showing how each ballot was voted). I investigated and determined that, because the ballots and strings hadn’t been shuffled, if I could find my string then I could see how the voters listed near me on my precinct log voted, and vice versa.  So I concluded that my ballot was not secure.  That led me to file my complaint dated August 30, 2009, because I felt (and still do feel) that the City of Aspen violated my constitutional right (as well as the constitutional rights of all Aspen voters) to a secret ballot election.  The City of Aspen has never responded in writing to my complaint, and has never denied the facts alleged in my complaint.