-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, 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.
I would like to reinforce some of Marilyn’s  comments to you, but based on recent dramatic news that a flawed election “modernization” bill seems to be rushing towards the State House right away, my attention may be  further diverted with an urgent attempt to join and help lead a group of citizen election quality activists to fight this democracy-damaging  legislation.  The “modernization” bill sponsored by Speaker Terrance Carroll and supported by Secretary of State Bernie Buescher is quickly becoming a very partisan political issue- a truly hostile partisan one- unlike any election related issue Aspen has seen recently. It is going onto the radar of Republicans as a campaign issue- incredible given that election procedure changes are usually far from a viable campaign topic, as Aspen’s letters maligning Marilyn Marks demonstrate.  It is worth-while to compare a real partisan response to an election procedure issue (mail ballots), as opposed to one that is sometimes spun to sound partisan, as IRV is in Aspen.
My background is both technical and practical.  I have now spent hundreds of hours in Denver advocating for election law improvement. To  be credible I must have direct knowledge of facts from the field.  I have personally observed and conducted testing, tabulation, and audit of a number of Eagle County elections with both the Accuvote system and the Hart central count system, working directly with Clerk Teak Simonton.    Aspen’s election is a major source of additional information for best and less-than-best practices in elections, as well as a significant guide for improved future elections everywhere.
I have a personal passion for election quality. Hence  I have invested almost all of my free time to the pursuit of better election policies. Events in Aspen since the election have only strengthened my resolve to continue.  I probably have a unique perspective on Aspen’s May election from the distance of 20 miles away. I estimate that I have spent over a thousand hours studying Aspen’s election in the last year, including many in-depth discussions with the principals of True Ballot.  I understand the technology, the means of IRV tabulation, the relevant law, and the process issues. But even with a thousand hours of investment, there are still many unresolved significant questions, which gets to the point of this letter. 
Aspen can continue to bypass best election practices for pre and post election transparency,  probably like other municipalities, but it risks seriously eroding voter confidence. Attacking those who would attempt to raise the issues is counterproductive and will only lead to more  wide-spread dissatisfaction and uncertainty in future elections.  It is better to take a totally open and transparent approach, find all the problems that can be found, correct them and move forward.   It is best to take this route as a general rule- as any particular route to defrauding an election or any new source of election error may not have a defense built-in.  Transparency of records allows the public to find the flaws in an election.  This forms a most beneficial approach, as elections become more dependent on fewer people and more centralized machines.
But Aspen also has delved into a field which is the most promising election quality enhancement that I know of- single ballot audit capability. I have been advocating this for years, but now it is becoming a topic of national interest.  Two weeks ago I attended a conference in DC directly addressing this point and co-presented with Nik Koumoutseas of TrueBallot Inc to a group of academics, activists, election officials and VPs of major election equipment vendors about the Aspen election.  My interest is not limited to the effect on Aspen and its particular election. 
Also my interest is not particularly related to the outcome on the Aspen political scene, with one exception.  I cannot stand by and watch a smear campaign against other volunteer members of the public like you who are pursuing election information and election quality improvements with their best efforts.   It is key that you prevent such an event as the dissolution of the election commission from ever happening again, and you must also be prepared to encounter a similar experience.  I have personal and direct knowledge of the experience of the previous commissioners that stands in a stark contrast with the common impression of the facts that have been spread.  I am prepared to make my knowledge known.  Meanwhile I suggest viewing the City Council recording from September 14th in which Election Commissioner and lawyer Chris Bryan brings his request to the Council to see the response he received.  I would not personally serve as election commissioner in Aspen without viewing this video.
Here is the link: http://aspenpitkin.granicus.com/MediaPlayer.php?view_id=3&clip_id=136 and click on “a) Request for Funds – Election Commission/Outside Counsel 
I have many recommendations for you, which I hope to share in whatever you choose is the most appropriate format. However, I have an over-arching suggestion as you are attempting to organize the considerable body of work ahead of you.  This is not a recommendation I would have made 6 months ago. It is one coming from my in depth experience regarding the Aspen election since then.   I have prepared a blog that is intended to archive the history of the unique Aspen May 5 election and its various side-effects and controversies. The blog is reached here: http://aspenelectionreview.blogspot.com  I would recommend several of the most recent posts- one intended to help explain what a “secret ballot” means in Colorado- to separate the diverse and orthogonal benefits of anonymity and privacy.  Another recent post contains the Aspen response to Marks’ most recent motion to reconsider, and three comments to it.  If you read just this portion you will see some of the issues you may need to be able to comprehend in order to successfully serve as election commissioners- not because you have a stake in the legal handling of the case, but because the case is all based on choices made in the handling of election records that you ought to be very confident about deciding or at least approving before another election is held.
The legal, public policy, technical and practical problems of the last election are clearly difficult for a body of 2 independent citizen volunteers and one paid city staff member who has other very much related responsibilities to handle without help. My thousand hours leave many important questions yet unanswered.  I have sent a list of 45 to Jim True, cc: Election Commission.   The failure to receive answers to these is proof to me that the task you face is almost overwhelming and impossible for three commissioners  to adequately address without assistance.  I would like to suggest that you set up a process that likely includes authorizing an independent audit, as well as making an analysis of the many applicable election  laws and rules that Aspen is currently subject to. The labyrinth of arcane laws and rules are complex. You will need help to do a good job. Some of those laws are defective and require adjustment.  Please make sure you come to understand this.
Marilyn Marks and I have many reports on issues that deserve attention in Aspen. They are both in the positive and the negative categories.  Feeding them to you bit by bit could be a viable process but it will take a long time. I am searching for what that appropriate process is. It is not feasible to just turn over what we have to you because it isn’t in such a convenient form.
The Secretary of State has no jurisdiction over the municipal elections. The Election Commission and the District Attorney (C.R.S 31-10-1501) are the only resources a citizen has to work with on election quality issues other than going directly to City Council or taking the route of prohibitively costly court battles.  It would be a shame if the DA’ s office has to become the arbiter of quality of Aspen’s elections. The power to do much better (cheaper, more humane, and more reasonable) than that is in the hands of the  Election Commission. But to do so, you will need the help of outside assistance: legal, technical and clerical resources. I urge you to consider this in your efforts to organize your upcoming work.
I am happy to offer any information or recommendations you may wish to discuss with me. I may be reached at 970 963 1369
Thank you for taking on this important citizen volunteer role.
Harvie Branscomb

From: Marilyn R Marks 
Sent: Wednesday, April 07, 2010 1:40 PM
To: 'Ward Hauenstein'; 'Bob Leatherman
Cc: 'Harvie Branscomb'; 'Mike LaBonte'; 'elizabeth.milias'; 'millard zimet'; 'Carolyn Sackariason'; 'Curtis Wackerle'
Subject: upcoming EC meeting and City's latest filing

Ward and Bob,

Thank you for your willingness to tackle this enormous task ahead by scheduling another meeting so soon.

I am sorry that I have a conflict and will not be there.

You know my feelings about the “only in public” communication norm you are considering.  So I won’t belabor that point, other than to mention an example I was considering yesterday.

If someone had concerns about  potential financial improprieties and wanted to be sure that they were investigated, I would hope that they could go to a  financial advisory board member or a member of the City Council to have a quiet discussion before making it front page news by making the accusation in public comment period at CC meeting. Perhaps that is a helpful analogy to consider, given the hyper-sensitivities caused by the misinformation about the prior EC communications.

In the meantime, the City has filed a motion with the court which I hope you consider in your discussions about “secret ballots” (a misnomer), and “anonymous ballots.” I fear that their motion will add further confusion to the ballot image debate.  The motion  filed yesterday is posted on Harvie’s blog site at

I particularly draw your attention to the clarifying comments made by Harvie Branscomb and Mike LaBonte at:

I see this as important for you guys, not in terms of analyzing the litigation, but in terms of planning for the next election, and maximizing transparency in doing so.
Maximizing transparency obviously means dealing with the confusion between “secret” and “anonymous” and the voter education that apparently needs to come with that.

Thank you again.  I will look forward to seeing you at the meeting on the 20th.

Marilyn Marks
Aspen, CO

[email by Elizabeth  Milias, former Aspen Election Commissioner]

Ward and Bob

Thank you for taking the time to have such an informative and open EC meeting yesterday. As I commented, Chris Bryan and I did not have any such luxury.  And I remind you again to get the full run-down on the Colorado Open Records Act and Open Meetings Law information to which you are subject.  It will only serve to help you!  Trust me!

From my personal experience, this election stuff is beyond over-whelming. But frighteningly, the topics raised yesterday are but the tip of the iceberg.  Chris and I were vilified for just asking for clarification of our duties and responsibilities, as well as our role in addressing citizen complaints.  You are already off to a far more transparent and professional start -- congratulations!  Keep up the great work!

I commend you for allowing/enabling public dialog at the meeting and urge youto continue this discourse.  A lot can be aired and resolved through this kind of on-the-record discussion, and it will prevent memos, memos and more memos (a good thing) that have a tendency to be ignored in City Hall.  Dialog with the public also importantly enables the ability of citizens to correct/rebut things on-the-record that are said in the meetings.

Chris and I found ourselves in trouble when we wanted to engage outside counsel (and we also discussed an outside election auditor). Please do not discount this idea.  The election problems, as you will learn, are ridiculously complex and so systemically pervasive that nobody at the City wants these aired or even dealt with.  Sadly, they must be addressed if Aspen is to ever have fair and honest elections.  And this goes far beyond IRV.  Don't let a potential repeal of IRV keep you from looking into systemic election mis-management by the City and the Clerk, and not just in 2009.  The facts are truly staggering.  An objective third party would be ideal for the documentation and research into the myriad problems.  (But a warning, Mick and the attorneys won't like it a single bit!!)

You are making up for YEARS of inattention and have but one year to put long-needed controls in place to address so many issues. It's a tall order, to say the very least.  The City has a constitutional claim before them that has implications for the next 3 years.  There is an ENORMOUS amount of work ahead.

I am grateful for your service and commitment to election integrity in Aspen. If there is ever any information that you need from me, please do not hesitate to ask.


Elizabeth Milias

On Fri, Apr 2, 2010 at 6:08 PM, Marilyn R Marks wrote:
I respect your opinion, but not your rationale or  conclusion. I must vigorously disagree.
Please see below.

From: Ward Hauenstein
Sent: Friday, April 02, 2010 10:03 AM
To: Marilyn R Marks
Cc: Bob Leatherman; Jim True; John Worcester; Kathryn Koch
Subject: EC communications

Dear Marilyn,

This email is to inform you and other members of the Election Commission (EC) of my position on openness and transparency in fulfilling my duties on the EC.
Thank you for taking the time to respond.

 I have stated previously and restate here that I will not conduct sidebar discussions on EC related issues.  

I understand your position and your “right” to do so, however, with your decision comes a great deal of responsibility for  unwillingness to hear about issues  that you might otherwise hear.
As I mentioned, there are things that nervous citizens would like to tell you privately. They are afraid to come forward in public. With your decision, they are shut out of expressing their concerns.
Do you really expect people to tolerate the kind of abuse that Elizabeth, Chris, Harvie and I have?  They’d rather just not vote than to have to come speak in public.

In fact, I’m personally aware of a very troublesome issue--- far more serious than anything put in the public record to date.  It should be something I could share with you privately. But you are turning a deaf ear to anything that can’t be yet put on the front page of the newspaper.

Any communication sent to me relating to EC issues will be forwarded to all EC members and the City Attorney's (CA) office.

I understand that and support that, of course.

  Please include Kathryn Koch on your emails to me.

I of course have NO problem with my emails as public records. You may send them to anyone you desire. However, I must, as a matter of principle not acquiesce to your attempt to control who I communicate with. If I want to write to Torre about Main Street parking, I do not accept that I have to write the entire council.   And similarly here.
If I want to have a cup of coffee with Skadron to discuss the 2010  city budget, I do not agree in any way that such a discussion is off limits, and has to be with the entire council.
If you think of the implications of such a policy, it is completely anti-democratic, in my view, ---where we the people cannot have access to our volunteer and elected representatives.
Your personal policy serves to silence any nervous voter who wants to talk with you, but is afraid of retaliation. Why would you want to have such a policy?

 If she is not included I will forward a copy to her anyway.
I of course have no problem with that since these are public documents.

 On advise from the CA's office any emails sent by me to other members of the EC are subject to Sunshine Laws.  If I email KK and or BL about EC business it is considered a meeting and is therefore under the regulation of Sunshine Laws.

While I totally agree that such emails are public documents, the notion of all emails  constituting a meeting is not my understanding of the  law. Otherwise you would get absurd results.
 For example, you could not have a group email to agree on a time for a public meeting, because that would be considered an unnoticed meeting in itself, if such an absurd interpretation were made.  That is just not the way the law works. But indeed the emails are  public documents.

 Any meeting must be publicly noticed at least 24 hours in advance.  So I cannot CC the EC on responses to you because of open meeting laws and I will not have sidebar discussions with you or any other person or group on EC matters.
Per my comment above

 KK and BL are free to make their own decisions on sidebar discussions and communications on EC business.  My moral position is to not engage.  

I am truly sorry that you feel that it is immoral to engage with concerned citizens on a personal basis. While I am completely unafraid of any retaliation,  90% of the people I know do not feel that way. I personally feel rather the opposite. I think it is of questionable morals to put up such walls that it pushes away any citizen who doesn’t want to make a public complaint, and who wants to share their concerns with you by a phone call or on a walk by the river.

I welcome your thoughts on EC matters but please understand that I will not respond to these emails.  I expect you to fully appreciate my position.  You are always calling for transparency and openness.  Because of Sunshine Laws I am forced to this decision.

I am indeed calling for transparency and openness. I feel that transparency needs to apply to all government bodies. It does not apply to private citizens who want to speak to their government, and express private concerns.  Let me be clear that I do not expect NOR WANT my emails to be private. They are public. No issue with that. I am objecting to the stone wall you are putting up to other forms of communications with citizens less vocal than I am. And quite frankly, things I would like to talk with you about which are not yet ready for publication, but rather important for you to know.

I urge you to think about how this uber definition of transparency would look to the public if voters had wanted to tell you  quietly in a conversation of serious wrong doing, or even physical threats they had received, or being personally intimidated, and you refused to meet with them—telling them to go public with their concerns, or forget them.  And if someday they did get hurt or decided to get brave and tell that story. I think that “transparency” should not be an excuse not to listen to your fellow citizens. Or an excuse to keep from accepting preliminary information on sensitive matters that should not yet be in the public domain.

The attached memo is a blog entry I posted today on AspenPost, when Michael Conniff continues to claim that I was guilty of some kind of inappropriate communication with the election commission, but like Jack, will not be specific. Please note that I have finally disclosed that the “other side” WAS actually having private meetings. I was not.  But I have NO problems with Mick’s private meetings with Chris. My communications were virtually ALL public record.
I fear that not only the public and press, but possibly you are being misinformed on the facts.

May you and all recipients’ of the email have a meaningful and reflective holiday weekend.  Passover and Easter invite use to reflect on justice and proper actions.

May the Force be with you all,
Ward Hauenstein


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